No extraordinary and immediate termination where employee consumed pastries without payment

The State Labour Court in Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg) decided on 29.12.2015 (10 Sa 32/15) that, even if an employee consumes cakes and pastries belonging to the employer without payment, an extraordinary and immediate termination might be ineffective if it is not certain that the employee has deliberately and seriously broken existing rules if clarification and, if necessary, warning might have led to the termination of the behaviour.

The defendant runs a car dealership with its own garage,  sales, filling station and shop. He employs fewer than five employees regularly. The 60-year-old plaintiff had been employed as a gas station attendant and shop assistant with the defendant since 01.09.1989. He was also responsible for the customer advisory service and orders in the tyre business as well as, when required, installation of tyres. Video recordings in the shop showed that the plaintiff took and ate pastries intended for sale several times without paying. As a result the defendant declared the extraordinary and immediate termination of employment relationship.

The Labour Court (Arbeitsgericht) ruled that extraordinary and immediate termination was ineffective, as did the State Labour Court (Landesarbeitsgericht). The employment relationship ended by ordinary termination. Taking the overall circumstances of the case into account and also the previous course of the employment relationship, extraordinary and immediate termination was disproportionate. Even if objectively there was good cause according to sec. 626 of the German Civil Code (BGB – Bürgerliches Gesetzbuch) due to lack of approval of the consumption of the pastries, it cannot be considered, or it is not clear at all that the plaintiff consciously broke existing rules so seriously that had he been given clarification and, if necessary, a warning, the plaintiff would not have stopped the unpaid consumption.