Germany Update: Extraordinary termination due to the theft of disinfectants

While in the past the labour courts have already had to deal with a wide variety of dismissal issues – from the embezzlement of deposit vouchers to the consumption of bee sting cakes, shepherd’s cakes or Viennese sausages – the corona pandemic has created a new object of desire: disinfectants.

 Circumstance

With the onset of the corona pandemic in spring 2020, the employer provided its employees with disinfectants for use in the company. Taking into account the corona-related shortage of disinfectants, the value of a 1-liter bottle of disinfectant at this time was about 40 EUR. At the end of March 2020, the employee, who has been employed as a warehouse worker for about 16 years, stole such a 1-liter bottle of disinfectant and a roll of towel paper from his employer during his working hours. The employer then terminated the employment relationship without notice.

Decision

The Düsseldorf Regional Labour Court (LAG) considered the extraordinary dismissal to be effective in its decision of 14 January 2021 (file number 5 Sa 483/20). The employee had withdrawn the disinfectant from the access of the employer and his colleagues and thus committed a serious breach of duty, which was likely to constitute an important reason for dismissal. The court emphasized that it does not matter to the criminal assessment of whether the theft of the disinfectant and towel paper is a theft. Rather, the failure to fulfil obligations lies in the fact that the employee withdrew the disinfectant from the employer and excluded the other employees from use and made it impossible for them to use the product. The misconduct is so serious that a prior warning is dispensable. As part of the balancing of interests, the LAG took into account, to the detriment of the employee, that he ruthlessly put his own interests above the interests of the employer and his colleagues and accepted health risks himself. Nor can the value of the disinfectant be included in the balancing of interests in favour of the employee, since it was not a minor item due to the replacement value of around EUR 40 at the time as a result of the very limited availability of disinfectants in spring 2020.

Result

The decision of the LAG Düsseldorf is part of the labour court case law on the theft of employer property. The effectiveness of the extraordinary termination is hardly surprising in this respect. By denying the low value, however, the LAG Düsseldorf has made a clear distinction from the other trivial cases mentioned above, as examples. The decision shows that the trivial limit is in any case exceeded at EUR 40 and that the low value must be determined on the basis of the relevant market value at the time of the offence. A generalizing statement about the low value of disinfectants can therefore not be made due to the high value of the disinfectant in spring 2020 due to the situation or pandemic due to the decision of the LAG.

By Dominik Gallini, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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