On 28.02.2024, the Higher Labor Court of Lower Saxony ruled (Ref. 13 TaBV 40/23) that a works council chairman who attends private appointments instead of a booked training course and makes false entries in the time recording can be dismissed without notice. This working time fraud constitutes sufficient grounds for immediate dismissal.
The judgment of the Lower Saxony Higher Labor Court (LAG) deals with the following event: Amazon operates a logistics center in Winsen/Luhe with a 17-member works council.
The chairman of the works council, who has been released from work since May 30, 2022, registers for a three-day training congress (works council conference in Bonn) together with three other members of the committee at the employer's expense.
However, it is later revealed that the chairman only attends the first day of the congress. He spends the rest of the time in a café and stays overnight with his ex-wife. In his time sheet, however, he states that he attended the congress the entire time. Amazon considers this to be a lie and applies to the works council for approval to dismiss the chairman without notice for working time fraud. The works council refuses to give its consent, whereupon Amazon initiates proceedings to replace its consent at the Lüneburg Labor Court.
In the course of the proceedings, the works council chairman admits that he was absent from the congress, but claims to have carried out mobile works council work in the café. He argues that, as a member of the works council on leave, he has the right to organize his working hours flexibly.
On appeal, the Lower Saxony Higher Labor Court granted my application for approval of the termination of the works council chairman without notice. The Lüneburg Labor Court had already approved this application. Following a detailed hearing of the works council chairman and the examination of two witnesses, the 13th Chamber of the Higher Labor Court came to the conclusion that the misconduct justified extraordinary dismissal.
The works council chairman himself had admitted that he had left the works council meeting on his own authority by the morning of the second day at the latest and had not attended until the end. This constitutes a serious breach of his contractual obligations.
In addition, there was at least a strong suspicion that he had deliberately made false statements in his time sheet. His claim to have performed works council work in the café was deemed implausible and contradicted previous statements to other works council members. The court therefore replaced the works council's refusal to approve the chairman's dismissal without notice for working time fraud.
The employment relationship of works council members is subject to special protection against dismissal.
According to § 15 KSchG, a dismissal may only be made for good cause. I must first consult the works council in accordance with Section 103 BetrVG and agree to the dismissal. If the works council refuses to give its consent, the employer's only option is to take the matter to the labor court. In the procedure for substituting consent, the court can replace the refused consent if it recognizes an important reason within the meaning of Section 626 BGB for the intended termination without notice. The effectiveness of the intended termination is examined incidentally.
In the present case, both instances judged the misconduct of the works council chairman to be sufficient for termination without notice. Working time fraud also justifies the termination without notice of an exempted works council member. The reference to mobile working may not serve as a pretext for leisure activities.
It is important to note that the substitution of consent does not necessarily end the dispute. Once consent has been substituted, the termination without notice can be further reviewed in dismissal protection proceedings if the person concerned asserts that it is invalid.
This represents a long and complex path for the employer, which is difficult to justify with the special need for protection in the event of abuse.
Termination without notice? Are you a member of the works council? Act immediately and contact me, a lawyer for employment law! I will be happy to support you.
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