Where an employee repeatedly comes very late to work, this can in any case justify dismissal for misconduct if he has ignored previous reprimands and disciplinary notices.
Fault on the part of the employee is a necessary prerequisite for dismissal. Fault can be assumed where the employee has overslept several times by a considerable length of time (Cologne Regional Labor Court, Judgment of 20 October 2008, Case Ref.: 5 Sa 746/08).
The plaintiff was a shift worker who had been employed in production for over six years. This meant also working the morning shift which began at 05:00. In 2006 the plaintiff arrived several hours too late on a number of occasions. As a result, he was issued a reprimand in April 2006. After he again arrived at work too late in the weeks following the reprimand, he was called in for a disciplinary meeting with the HR department. In addition, he was offered medical assistance to deal with any personal or health problems he might have. He did not avail himself of the offer of assistance. Nor did the plaintiff alter his behaviour in the period thereafter which is why he was issued two disciplinary notices in 2007. He was told that if he came too late again he could expect his employment to be terminated. In October the plaintiff was once again assigned to work the early shift. When he arrived three and a half hours too late for work, his employer dismissed him with notice after first consulting the work council.
The plaintiff brought an action for unfair dismissal before the labour court. He argued that it was not his fault that he came too late. He had taken all necessary steps to avoid oversleeping. He pointed out that he had been taking painkillers since December 2006 which made him more sleepy. In addition, he had programmed several alarm clocks and mobile phones to wake him. He had asked his wife and mother-in-law to wake him, including by phone, at 04:00. Moreover, he alleged that his sleeping in was not material for his employer. Thanks to the work of his colleagues, it had been possible to avoid any losses in production. Both the Labor Court and the Regional Labor Court dismissed the claim.
The Cologne Regional Labor Court made clear that the dismissal for misconduct was socially justified. The employer was justified in terminating the employment relationship with the plaintiff due to the fact that he had been late to work by a considerable length of time several times. The Regional Labor Court held in addition that the employer could assume that the employee would again come late in the future since several reprimands and disciplinary notices had been fruitless. It thus confirmed and followed the consistent case-law of the Federal Labor Court.
The Cologne Regional Labor Court explained that an employee's main obligation was to perform his work punctually within the agreed working hours. A violation of this obligation was in its opinion a default based on misconduct. For this reason, the employer was entitled to issue a dismissal based on misconduct if the default was repeated. At the same time, the Court also made clear that a dismissal for misconduct will only be valid if the employee was at fault in coming too late to work. However, it assumed in the employer's favour that a presumption of fault will exist if reprimands and disciplinary notices have already been issued without success. In addition, it held that the plaintiff could not rely on the described steps he had taken to avoid coming too late. The Cologne Labor Court had not heard evidence on the allegations of the plaintiff, but had assumed that they were correct. Nevertheless, in the view of the Court the plaintiff should have considered more far-reaching steps to avoid oversleeping. He should have known that the methods he was using were not effective enough after mobile phones, alarm clocks and phone calls in the night from his mother-in-law did not do the job. The Cologne Labor Court did not attribute any major importance to his alleged consumption of painkillers since he had already been late several times before he took them.
The result of the judgment of the Cologne Regional Labor Court is not surprising and it confirms the case law of the Federal Labor Court. However, the Cologne Regional Labor Court expressed clearly that high demands are placed on the duty of care owed by an employee. In the present case, the plaintiff adopted a variety of countermeasures to prevent himself from oversleeping (even if no evidence of this had been taken). Nonetheless, the Court did not find his efforts to be adequate. This means as far as employers are concerned that there will generally be a presumption of fault where an employee comes repeatedly too late to work. Consequently, where such presumption exists, the employee will bear the burden of producing evidence that he was not at fault and persuading the Court of this. Conversely, it follows from the judgment of the Cologne Regional Labor Court that a dismissal for repeatedly coming too late would not be justified if fault on the part of the employee could not be proved. This would be the case, for example, where external influences have caused the employee to be late, i.e. ice on the roads or similar unforeseeable circumstances. Nonetheless, there is also no right to payment in such cases. Moreover, it is important to note that the employer has to send the employee a disciplinary notice prior to issuing a dismissal for misconduct.
Finally, we would like to draw attention to the following with regard to consultation of the works council: The employer has to describe all of the circumstances it considers relevant to the works council. In this context, its subjective view is what counts. If the employer does not mention certain circumstances because it is unaware of them, this will not invalidate its consultation of the works council even if the employee seeks to rely on such circumstances later. In the present case, the plaintiff first alleged during the trial that he had taken medication and tried numerous ways of being woken. Since the employer had not known of these facts until such time, its consultation of the works council was not invalid on the basis of "incompleteness". If, on the other hand, an employer fails to disclose information which could exonerate the employee in spite of having it, this can lead to the invalidity of the dismissal.