Crematoria can demand that employees return dental gold taken from the ashes. BAG 21.08.2014 - 8 AZR 655/13

From 1995 to May 2010, the defendant was employed in a crematorium that was operated by the plaintiff until the end of 2009 and was entrusted with carrying out cremations. Following the cremations carried out in the crematorium, the ashes are analyzed for residual precious metals such as dental gold. The findings are delivered to a limited liability company, which informed the plaintiff in October 2009 that other crematoria had delivered 10-15 times the amount of precious metals, with only approx. 10% of the cremations carried out at the plaintiff's crematorium. The plaintiff then called in the police, who observed the crematorium via video surveillance and searched the apartments of the employees. In the process, documents relating to sales of precious metals in the period from 2003 to 2009 were found in the home shared by the defendant and his partner, showing proceeds of around 250,000 euros. As a result, the defendant was dismissed without notice and an action for unfair dismissal against this was unsuccessful.

In separate proceedings, the plaintiff demanded the proceeds of the sales. The lower court granted the claim in a ruling dated 26.06.2013. The defendant lodged an appeal against this, whereupon the Federal Labor Court ruled that the employer, as the operator of a crematorium, is generally entitled to a claim for restitution or, if restitution is impossible, a claim for damages. This also applies irrespective of the question of whether the employer originally became the owner of the precious metals, as the claim for damages is derived from Section 667 BGB by analogy, i.e. from the employment relationship. However, as it was not clear who the claimant was, the plaintiff or the new operator of the crematorium, due to a transfer of business, the action was referred back to the Regional Labor Court.