Dismissals without notice can often be successfully challenged before the German labour courts. This was also the case in a recent case in Mecklenburg-Western Pomerania. A motor vehicle mechanic had borrowed a transport vehicle from his employer on a weekend in May 2022. He did not have permission to use company vehicles privately. Nevertheless, the Labour Court and the Regional Labour Court declared the employer’s subsequent termination without notice to be invalid. The locksmith’s action against the dismissal was therefore successful.

Unauthorised car use in principle grounds for dismissal

The courts agreed that the car mechanic had violated his duties when he borrowed the transport vehicle from his employer’s car park without permission. He then drove the vehicle a total of 10 kilometres and parked it on the company’s premises without refuelling. The judges considered this to be behaviour that was in principle suitable to justify termination without notice.

Circumstances only justify a warning

However, any dismissal must take into account the interests of the person concerned. In weighing the individual circumstances, the courts here came to the conclusion that the mechanic’s conduct did not justify termination without notice or with notice. A termination without notice is only effective if the employer cannot reasonably be expected to continue employing the person concerned until the end of the notice period. Labour courts are only convinced of this in exceptional cases.

A number of circumstances led to the employer only being allowed to issue a warning in this case. The dismissed car mechanic had been employed for almost 10 years. In the past, the plaintiff’s supervisor had already allowed him to borrow a company van for the move of his mother-in-law. This time, too, the plaintiff had tried unsuccessfully to reach his superior. Moreover, there was no clear internal regulation as to when company vehicles could be borrowed privately and when not. In the view of the courts, the mechanic was therefore entitled to assume that he would have been given permission. Finally, there was no warning for comparable conduct that the employer could have relied on to justify the dismissal.

Practical advice for employers

In the absence of a prior warning, it is usually difficult to defend a dismissal for misconduct before the labour courts. Especially in the case of dismissals without notice, it is advisable to seek legal advice before making the final decision to terminate the employment relationship. Mistakes at this point can be particularly costly in further proceedings. It is true that case law recognises a large number of breaches of duty as sufficient grounds for termination in general. However, many dismissals fail when the interests of the employee are weighed up.

Judgement of the LAG Mecklenburg-Vorpommern of 21.6.2022, file number 5 Sa 245 / 21