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Guilty or not guilty – termination of the employment of an addicted employee

The Labour Court Düsseldorf (Arbeitsgericht; docket number: 2 Ca 3420/14) ruled on October 21, 2014 that the termination of an employment with a gambling-addicted employee based on misappropriation of money is valid even though a works council agreement determines that the employer is obliged to take various disciplinary actions (including informal/formal warnings) prior to any termination. In general such an agreement does not apply to addiction-related criminal offenses.

The plaintiff worked for over 20 years for a local authority. During his working time the plaintiff misappropriated more than € 100,000 by imposing excessive fees (eg for concessions to run a restaurant) and keeping parts of these fees for himself. The employer terminated the plaintiff in more than 30 cases on the basis of suspicion of responsibility for the misappropriations. In the plaintiff’s view the employer had missed his obligations since he did not follow the disciplinary actions as set out in the collective agreement. Furthermore, the plaintiff argued that due to his addiction he could not be held responsible for his actions (due to lack of fault).

The Labour Court did not confirm the plaintiff’s view. According to the Labour Court the collective agreement was not applicable in the case at hand since the agreement only covers “typical” addict-related behavior (eg poor performance) and not criminal offenses committed by the employee. Furthermore, despite any (unsubstantiated) lack of fault the Court stated that a termination for severe cause could also be based on non-culpable breaches of duties.