But will the dismissal stand up in court?
A 65-year-old employee of a car repair firm was summarily dismissed after he caused serious damage to a client's car and then tried to cover it up. Proceedings with the subdistrict court followed. You can read how the judge ruled here.
What was going on?
The car mechanic, 65 years of age and employed by the company since 2017, was summarily dismissed in February 2022. While performing a minor service with a technical check on a BMW, the car's steering system was seriously damaged due to carelessness on the part of the mechanic. Instead of reporting this, the mechanic tried to camouflage the damage in a rather clumsy way. When the car was on the workshop bridge, the chief mechanic discovered the damage after all.
According to the car body repair company, the damage was life-threatening and the employee should have known that there was a great risk to the driver of the BMW. A summary dismissal followed, after which the mechanic went to the subdistrict court.
What is the employee claiming?
In the proceedings, the employee argued that the instant dismissal was not legally valid. The mechanic applied for a transitional payment of €3,685, for fair compensation of €16,469, for €2,289 in wages/holiday pay as a result of the failure to respect the notice period, for €1,056 in holidays and for the non-competition clause in his employment contract to be annulled.
The car body repair company, for its part, requested compensation in the amount of €4,718, consisting of damage to the vehicle and loss of income because the employee could no longer work for the company as he had been dismissed.
What was the judgment of the subdistrict court?
The judge of the sub-district court states that the employee has acknowledged that he caused the damage to the car's steering mechanism. According to the judge, it has also become sufficiently plausible that the employee failed to adequately report the damage to his employer.
However, the subdistrict court considered the instant dismissal too severe a sanction. In addition, the judge took into account the fact that the employee was not entitled to salary or social security benefits as a result of the dismissal. Furthermore, the employee is 65 years old and about to retire. The car body repair company has not provided any performance reports, so it is assumed that this employee has worked satisfactorily for four years.
Furthermore, the subdistrict court indicated that it is quite conceivable that the employee had betrayed the employer's trust. The employer was therefore certainly entitled to take measures under employment law, but summary dismissal went too far. According to the subdistrict court, there was no urgent reason for such a dismissal.
The next question is whether the employee is entitled to transitional compensation, compensation for wrongful dismissal and fair compensation. The subdistrict court awarded the transitional allowance, as there was no question of serious culpability on the part of the car mechanic. The compensation for wrongful termination was also awarded, as the applicable notice period had not been respected.
In addition, the employee received an equitable remuneration. Failure to comply with the rules for a legally valid dismissal is in fact seriously culpable on the part of the employer. With reference to now fairly settled case law on fair compensation, the subdistrict court arrived at a fair compensation of € 4,239 gross. This is two months' salary.
The claim for unused holidays and the request to annul the non-competition clause were also upheld.
The counterclaim from the car body repair company was rejected: an employee who causes damage to the employer in the performance of his work is not liable for this, unless the damage is a result of his deliberate or conscious recklessness. According to the subdistrict court, however, this was not the case.
The judgment, including all facts and considerations of the subdistrict court, can be read here.
The moral of this story?
Employers, beware of instant dismissal! It is very well possible that judges disagree with you on the question whether there is an 'urgent reason'.
Case law indicates that 'in assessing whether there are compelling reasons, all the circumstances of the case, in their mutual relationship, must be taken into account, including: the nature and seriousness of what the employer considers to be compelling reasons, the nature and duration of the employment relationship, the way in which the employee performed that employment relationship, as well as the employee's personal circumstances, such as his age, his private situation and the consequences that the summary dismissal would have for him'.
Therefore, the employment law team of SPEE attorneys & mediation should advise you well and, above all, in good time. This, of course, also applies to employees who are faced with summary dismissal.