The State Labor Court of Rhineland-Palatinate (Landesarbeitsgericht Rheinland-Pfalz) decided on 01.09.2016 (5 Sa 139/16) that the defendant is obliged, according to her employment contract, to hand over all operational working materials and documents, as well as copies and recordings, to the plaintiff when leaving the company.
The plaintiff runs an enterprise which trades in rice and legumes. The defendant was employed since 01.09.2013 with the plaintiff as a sales manager for the business unit “Business for Prepackage” (“Abpackgeschäft”). She also received power of attorney. Among other things, the employment contract provided that: “With the withdrawal of the employee, the employee has to hand over all operational working materials and documents as well as any copies and recordings to the employer. The employee has no claim to retention.” On 11.04.2015 the plaintiff was informed by one of her rice suppliers from Bangkok about a delivery inquiry of the until then unknown N Ltd. The plaintiff’s research established that this limited company was established by the defendant as sole shareholder and manager on the 22.12.2014 with the business purpose of “bottling and wholesale with edible oils and fat & rice and legumes”. In the course of her research, the plaintiff discovered a business start-up concept of the N Ltd on the company network on 12.04.2014 which was developed and documented by the defendant and an consultant. Moreover, the plaintiff found out that the defendant had connected an external memory medium on 09.04.2015, presumably an USB-Stick, to her personal computer and transferred 11,892 records. On 20.02.2015 the plaintiff terminated the employment agreement without notice. The defendant (as plaintiff) defends herself against this termination in a lawsuit regarding protection against dismissal. The plaintiff applied for an interim order prohibiting the defendant from using any business data or disclosing it to a third party.
The Labour Court (Arbeitsgericht) partially granted the order but rejected the claim for compensation. The State Labour Court (Landesarbeitsgericht) upheld this decision. It is not important that there is no decision on the action for dismissal protection yet. The defendant left the company immediately after the termination without notice on 20.04.2015. The plaintiff has a right to recover possession under the employment contract as well as according to sec. 667 of the Civil Code (Bürgerliches Gesetzbuch). The plaintiff may at any time demand that written or electronic recordings be returned or destroyed, and also has a claim to removal of information according to sec. 8 para. 1 sentence 1 of the German Fair Trade Practices Act (Gesetz gegen den unlauteren Wettbewerb – UWG). The employee has no claim for retention with regard to written or electronic recordings.