The Higher Labour Court Hamm (Landesarbeitsgericht Hamm, docket number 7 TaBV 45/16) had to decide whether a member of the works council, with a seniority of 20 years, can be terminated for good cause with immediate effect. The reason for the termination was the allegation that a member of the works council wrote “for you – you are next” on a sympathy card for a colleague. The Court ruled on 30 August 2016 that this allegation could not be supported with sufficient evidence and the termination is therefore invalid.
According to German Labour Law, members of the works council enjoy special dismissal protection. It only allows terminations for good cause with immediate effect and only with explicit consent of the works council. If the works council refuses consent, the employer can make a request to the court to replace the works council’s consent.
To terminate the member of the works council in the case at hand, the employer needed to prove that a very particular reason existed which led to a destruction of the relationship of confidence between the parties. Therefore it was necessary to establish whose handwriting it was on the sympathy card. To prove the suspicion, the employer obtained an extrajudicial opinion on handwriting, which came to the conclusion that the handwritten addition was very likely made by the member of the works council (based on three of eight similarities). The Higher Labour Court decided that the evidence that it was “very likely” was not enough for a termination for good cause with immediate effect. It considered that a termination based on a suspicion is permitted only under strict conditions. These conditions require a strong suspicion of a serious breach of duty based on objective facts and that the employer uses all possibilities to establish all the facts of the case.