Dismissal without notice for “pirate copies”

BAG, judgment dated 16.7.2015 – 2 AZR 85/15

If an employee uses his/her work PC for private purposes, e. g. by copying audio or video files onto company DVD and CD blanks, this can justify dismissal without notice.

The plaintiff had been employed at the Higher Regional Court Naumburg as IT manager since 1992. His duties included ordering the accessories required for data processing. A business audit was conducted in March 2013. During this audit, the hard disks used by the plaintiff were examined and evaluated. This revealed more than 6,400 “pirate copies” (e-book, picture, audio and video files). Also found installed on the computer used by the plaintiff was a program for circumventing the manufacturers’ copy protection. The defendant (the Federal State) then terminated the employment relationship without notice.

The Labor Court Halle and the State Labor Court Saxony-Anhalt granted the plaintiff’s legal action for unfair dismissal. The LAG (State Labor Court) Saxony-Anhalt was of the opinion that it had not been established with certainty which specific contribution the plaintiff had made to the undisputed copying and burning processes. Additionally, the criminal prosecution authorities were not involved in clarification of the facts. In the opinion of the LAG Saxony-Anhalt, this had not enabled comprehensive clarification of the facts of the matter.

Specific contribution to the deed immaterial

The BAG (Federal Labor Court) reversed the appeal judgment of the LAG Saxony-Anhalt and referred the matter back to the LAG Saxony-Anhalt for further clarification. In the opinion of the BAG, dismissal (without notice) is also possible even if the plaintiff has not carried out all questionable acts himself/herself, but rather has cooperated with other employees or has consciously enabled the creation of “pirate copies” by these. The plaintiff had not been able to deduce from the possible permission to use his work computer for specific other private purposes that he was permitted to carry out the copying and burning.

Own investigations by the company admissible

The BAG also drew attention to the fact that an employer is permitted to carry out independent investigations to clarify facts without involving the criminal prosecution authorities. Nevertheless, a requirement in this respect is that the investigations are carried out speedily. The own investigation measures and the related clarification of the facts also suspend the period under Section 626 Subsection 2 BGB (German Civil Code).

No need for criminal offence (violation of copyright)

The BAG thus correctly establishes that the unauthorized use of the work computer can justify dismissal without notice, irrespective of criminal acts committed in this context. An employee likewise cannot claim recourse to having acted jointly with other employees. This is because the BAG draws attention to the fact that the principle of equal treatment is not applicable within the framework of dismissal on grounds of conduct. The decision of the BAG thus makes it clear that appropriate employment law measures can be taken if employees massively violate their duties under their contract of employment. As such, the argument that a long period of employment with the company excludes dismissal cannot apply.

Summary

If an employee uses his/her work computer for private purposes without authorization, dismissal without notice is possible. In this case, the interest of an employer in immediate ending of the employment relationship can outweigh the interests of the employee in continuation of the employment relationship (at least up until expiry of the period of notice). This is the case in particular if the employee commits punishable acts in this context.