Extraordinary termination based on strong suspicion – subsequently added new facts possible

In a legal dispute concerning the effectiveness of termination based on strong suspicion, account must also be taken of circumstances of which the employer has become aware at a later date. Prior hearing of the employee is not necessary in this case, even given the existence of new reasons for termination.

The claimant worked for the defendant as District Sales Manager in the field sales force. In August 2010, the defendant developed a suspicion that the claimant may have been involved in the fraudulent awarding of orders to the detriment of the defendant. The defendant heard the claimant in August and September 2010 concerning the accusations – which the claimant disputed – and then terminated with immediate effect in October 2010 on the basis of strong suspicion. The defendant became aware of new grounds for suspicion in July 2011. These indicated that the claimant had invoiced a construction company for an amount of approx. EUR 9,000.00 in November 2009 for a construction project of the defendant. The documents found gave rise to the suspicion that the construction work invoiced had not been carried out for the defendant but rather on the claimant’s property. The defendant introduced this new knowledge into the legal dispute during the appeal procedure, without having previously again heard the claimant in this respect.

Introduction of new reasons for termination

The BAG (Federal Labour Court) decided that not only the actual circumstances, known to the employer at the time of giving notice of termination, were of significance. On the one hand, account should also be taken of circumstances that did not become known until later and which either weakened or strengthened the original suspicion. On the other hand, facts that create the suspicion of an independent – new – reason for termination can also be introduced into the litigation. In each case, a prerequisite is, however, that the new facts already existed objectively at the time of giving notice of termination, and were merely not yet known to the employer at this time.

No new hearing

If the employer introduces new facts into the legal dispute that merely reinforce the suspicion, then, according to the BAG, there would also be no need for a renewed prior hearing of the employee, as is normally a prerequisite for the effectiveness of termination based on strong suspicion. The BAG referred to the fact that the employee had already been heard concerning the accusation giving rise to termination. Additionally, the employee could easily also defend himself against the increased suspicion during the proceedings for unfair dismissal. The same applies to the introduction of new facts into the proceedings for unfair dismissal which establish the suspicion of a further violation of obligations. Here too, the BAG does not see the need for a further hearing. Finally, the requirement of hearing is intended to protect the employer against overhasty decisions and to counter the risk of an innocent person being affected by the termination. If however – as in the case of “subsequent adding” of reasons for termination -, the employee has already received the notice of termination, renewed hearing can no longer prevent the giving of notice of termination. The employee’s rights are also safeguarded even without a hearing as the employee can defend himself against the new suspicion in the unfair dismissal proceedings that are already pending.

Hearing of the Works Council

It should however be noted that the BAG requires hearing of the Works Council analogous to Section 102 Subsection 2 BetrVG (Works Council Constitution Act) concerning the extended reasons for termination. Finally and in contrast to the hearing of the employee, the hearing of the Works Council is not only for the purpose of clarifying the facts but should also give the Works Council the opportunity of actively influencing the employer’s decision to terminate. As the Works Council is not involved in the legal action for unfair dismissal, it must be heard before introduction of the extended reasons for termination into the ongoing litigation.

Period of notice

According to the BAG, consideration of subsequently added new facts is likewise not frustrated by the two-week deadline of Section 626 Subsection 2 BGB (German Civil Code). According to the wording of the provision, this deadline is applicable solely to the exercising of the right of termination.

Conclusion

New facts can be introduced into the proceedings for unfair dismissal, even after the serving of notice of termination based on strong suspicion. When introducing new facts that establish the suspicion of a further violation of obligations, there is no requirement for renewed hearing of the employee concerned, but the Works Council must be heard again.