On 14 November 2017 the State Labour Court of Mecklenburg-Vorpommern (docket number 5 Sa 87/17) decided that a termination with change of terms of employment on grounds of conduct is socialyl justified if an employee has breached contractual obligations again in spite of a warning. In principle, this also applies in cases in which the change of terms of employment entails a transfer to a lower paid activity.

The plaintiff is employed as a bus driver by the defendant. In his additional function of a dispatcher he was also responsible for planning tours, as well as for the road safety of the buses. A few months before the plaintiff omitted to take a bus off the road after technical problems with the bus were pointed out to him. In this case the plaintiff didn’t consider it necessary to investigate the bus technically. The department manager superior to him took the bus out of operation and arranged a technical investigation of the bus, which determined the lack of traffic safety. Due to this misconduct the plaintiff received a warning letter.

After the plaintiff omitted to take a bus off the road once again after he was pointed to technical problems with the bus, the defendant decided to terminate him with change of terms of employment. By the termination with change of terms of employment, the plaintiff lost his position as a dispatcher. He received the offer to work from now on as an “ordinary” bus driver. Due to the changed activity he slipped down three pay scale groups. Both instances declared the termination with change of terms of employment effective.

A termination with change of terms of employment according to sec. 2 Dismissal Protection Act is socially justified, if the offer of change by the employer is conditioned by reasons pursuant to sec. 1 para. 2 Dismissal Protection Act and the changes are limited to such changes as the employee has justifiably to accept (cf. Federal Labour Court, Decision of 22. October 2015 – docket number 2 AZR 550/14 – recital 23, juris).

A termination is conditioned by grounds of conduct and socially justified, if the employee culpably and significantly breached his principal or secondary contractual obligations, continuing trouble-free future performance of a contract cannot be expected and continued employment beyond the notice period is not acceptable due to consideration of the interests of both parties.

Lasting trouble-free future performance of the contract could not be expected, because of the previous admonished similar breaches of obligations. Therefore, a further warning was not required.

Whether or not an employee has to justifiably accept a proposed amendment of terms of employment has to be determined in accordance with the principle of proportionality. The amendment proposed must not differ further from the previous contractual arrangements than is necessary to achieve the intended purpose.

In this case, the interests of the employer in avoiding any risks of accidents predominate in comparison to the interests of the plaintiff in preserving his previous of terms of employment and his interest in his previous higher remuneration. Depending on the traffic situation and damage progression in both cases it could have resulted in serious accidents which might have had significant consequences for the defendant.

The decision of the State Labour Court of Mecklenburg-Vorpommern shows clearly that the termination with change of terms of employment in some cases could be an effective instrument to handle behavioural breaches of duty. Such a termination with change of terms of employment can also be appropriate, even though the employee suffers significant monetary damage in this way.