Termination based on strong suspicion during vocational training

BAG, judgment dated 12.2.2015 - 6 AZR 845/13

A vocational training relationship under the Vocational Training Act (BBiG) can also be ended by extraordinary termination based on strong suspicion.

The claimant had been in vocational training as a banker with the defendant since 1 August 2010. On 20 June 2011 he counted the money in the night-safe boxes of a branch. A cash shortfall of 500.00 EUR was later ascertained. According to the defendant, the claimant stated the amount of the shortfall spontaneously during a personal meeting, although he had only been spoken to concerning an unquantified cash difference. The defendant terminated the vocational training relationship based on the suspicion of misappropriation of the shortfall, created through the disclosure of perpetrator’s knowledge. The claimant considered the termination to be ineffective. He claimed that it is not possible to end a vocational training relationship through termination based on strong suspicion. There had likewise been no correct hearing. Prior to the meeting in question, he had not been informed that he was to be confronted concerning a cash difference. He had likewise not been informed of the possibility of involving a person of his trust. In addition, the defendant had violated obligations under the Federal Data Protection Act. The Labour Court Trier and the State Labour Court Rhineland-Palatinate dismissed the legal action. The BAG rejected the appeal on a point of law against the decision of the LAG Rhineland-Palatinate, and considered the dismissal to be effective as extraordinary termination based on strong suspicion.

Possibility of extraordinary termination under Section 22 Subsection 2 No. 1 BBiG

Through this decision to recognise the possibility of termination based on strong suspicion even in vocational training relationships, the BAG has settled a long-running dispute in case law and literature in favour of employers. In a decision dated 19 June 2006 (9 Sa 1555/05), the LAG Cologne was still of the opinion that termination based on strong suspicion is fundamentally not admissible in vocational training relationships. The reason is that a vocational training relationship is not characterised by a special basis of trust to the same extent as a normal employment relationship.

Special aspects of the vocational training Relationship

The BAG has now taken a differing view and stated that the strong suspicion of a serious violation of obligations by the trainee can render continuation of the vocational training relationship unreasonable for the training company. This constitutes an important reason for termination under Section 22 Subsection 2 No. 1 BBiG. The BAG did however add the restricting note that account must be taken of the special nature of the vocational training relationship.

In the opinion of the BAG, vocational training relationships and employment relationships cannot generally be treated equally. However, both are characterised by a strong commitment of the contract parties, with the result that the understanding of the important reason as defined in Section 626 Subsection 1 BGB corresponds to that of Section 22 Subsection 2 No. 1 BBiG. Consequently, termination based on strong suspicion is also possible in a vocational training relationship.

The strict requirements under case law apply to termination based on strong suspicion

Termination based on strong suspicion in a vocational training relationship must also take account of the accustomed strict requirements under case law. In particular, prior hearing of the trainee is regularly required. When conducting the hearing, account must then be taken of the special aspect of a vocational training relationship – the typical inexperience of the trainee and the resulting risk of placing excessive demands on him/ her. Given recognisable excessive demands, the trainee must be given appropriate time to prepare for comment on the accusations. However, this does not mean that an effective hearing would require advance informing of the trainee concerning the intended content of the discussion, as this would create a risk of collusion to conceal the act.

Consideration of the special aspects of the vocational training relationship during the hearing

The BAG does not therefore place any significantly higher requirements on the lawfulness of termination based on strong suspicion in a vocational training relationship, compared to a normal employment relationship. It takes account of the special aspects of the vocational training relationship within the framework of the hearing, at which the individual capabilities and needs of the trainee must be considered.

Summary

A strong suspicion of a serious violation of obligations on the part of the trainee can constitute an important reason for termination of the vocational training relationship under Section 22 Subsection 2 No. 1 BBiG, if the suspicion renders continuation of the vocational training objectively unreasonable for the training company, even taking account of the special aspects of the vocational training relationship. The decision creates legal clarity and is to be welcomed by employers. As such, termination based on strong suspicion is also possible during a vocational training relationship.