Termination without notice due to a nap during a night shift

The Higher Labour Court Rheinland-Pfalz (Landesarbeitsgericht, LAG) ruled on 16 April 2015 (docket number 5 Sa 637/14) that an employer can terminate an employee’s employment without notice because of a nap taken during a shift. The employee worked for 16 years as a night guard in a retirement home.  Two night guards were employed by the home with responsibility for 80 inhabitants. It was the employees’ duties to check on the inhabitants, bring them water and change bedding if necessary from 02:00 a.m. until 06:00 a.m. The night guard was also the emergency contact for inhabitants during the night.

In the case at hand the employee went to sleep during her shift. She was found in a locked unlit common room, seated in a recliner.  To ensure that she could sleep, she pulled the beds of two bedridden women away from the wall, so that they were not able to ring the emergency bell.

In the first instance the Labour Court Mainz (Arbeitsgericht, ArbG) determined that ordinary termination was justified. However, termination without notice was determined not to be justified as the ground for dismissal was not severe enough to terminate employment without a notice period. It was further stated that termination without notice was inadmissible as the employee was instructed to continue with her work until the morning.

The employer appealed the decision. It was argued conclusively that the employee had neglected the major obligation of her night duty. In her defense the employee suggested an hourly call between the two night guards, to ensure she was awake and pursuing her duties. The employer argued that hourly monitoring by the second night guard was unreasonable. According to the Higher Labour Court Rheinland-Pfalz the ground for dismissal is the destruction of the employer’s confidence in the employee’s reliability. The employee sought to defend the prior decision of the Labour Court and argued that a single nap during a shift cannot lead to termination without notice. Nevertheless the Higher Labour Court upheld the seriousness of her breach of duties, so that there was no need for the employer to issue an admonishment, as it would have been obvious to the employee that the employer cannot accept such behavior. Moreover the preparatory acts emphasized the audacity and the willingness of the employee to neglect her duties. The 16 years of flawless employment could not displace the fact that the employee risked the lives of the two bedridden women when she removed them from access to the emergency bell.