NRW

12.09.2023

After a drinking session on the employer’s premises after a Christmas party, the parties agreed today before the Third Chamber of the Düsseldorf Regional Labor Court at the employer’s suggestion to terminate their employment relationship.

The plaintiff, who lives in North Rhine-Westphalia, has been employed as an area manager for Central (NRW) in the field of the defendant, a wine cooperative, since June 1, 2021. On January 12, 2023, a Christmas party took place at the defendant’s home in southern Germany. After being welcomed into the company with champagne, the employees traveled together on a bus to an external restaurant. At around 11 p.m. the bus drove the employees who wanted it back to the company’s winery. The plaintiff had joined this group. There were no plans to continue the Christmas party in the company. The plaintiff met with two other colleagues in a hotel about 500 meters from the company to drink a bottle of wine. The plaintiff and a colleague then went back to the defendant’s company. The gate to the company premises was opened with the colleague’s access authorization card. The plaintiff and his colleague drank four bottles of wine in the winery’s lounge. The empty bottles were on the table the next morning. There were numerous cigarette butts in the trash can. There was a crushed tangerine on the floor that had been thrown against the wall. One of the two employees had vomited near the entrance door. The courtyard gate was open. The plaintiff’s colleague was picked up by the police on his way home that evening and driven home because he was heavily intoxicated to rule out any danger to himself. On January 16, 2023, the plaintiff’s colleague admitted to the defendant that he had “done something wrong.” He paid for the wine.

After hearing the works council on January 19, 2023 and with its consent on January 23, 2023, the defendant terminated the employment relationship with the plaintiff on January 25, 2023 without notice or, alternatively, on April 30, 2023. Unlike the Labor Court, the Third Chamber of the State Labor Court expressed in legal discussions that it does not consider a warning to be sufficient in view of the seriousness of the breach of duty. It is obvious that as an employee you are not allowed to enter the employer’s premises around midnight after the Christmas party has ended with your colleague’s chip card in order to consume four bottles of wine without authorization. There are no indications that the plaintiff tolerated this behavior on the part of the employer. At best, the question arises as to whether the behavior justifies immediate termination or whether the balancing of interests leads to an ordinary termination.

At the suggestion of the Third Chamber of the State Labor Court, the parties agreed to terminate the employment relationship for social reasons on the basis of the disputed termination with a social expiry period of February 28, 2023.

Düsseldorf Regional Labor Court – 3 Sa 284/23

Wuppertal Labor Court, judgment of March 24, 2023 – 1 Ca 180/23

2023-09-12 23:32:53
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