Sit-down strike for salary increase does not justify termination without notice. LAG Schleswig-Holstein 06.05.2015 - 3 Sa 354/14

The plaintiff was the manager of a delivery base. Since she was in this position, she repeatedly and persistently demanded to be paid as a non-tariff employee. After her superiors refused to meet her demands, she resigned from her management position and asked to be assigned to another job. The defendant asked the plaintiff to continue to fulfill her contractual obligations and invited her to a clarifying discussion. In the course of the discussion, the plaintiff continued to demand payment outside the standard pay scale, which the employer continued to refuse, which is why the plaintiff was finally asked to leave the room by the branch manager. She did not comply with this request and refused to leave the room for several hours. Neither a period of reflection alone in the room, nor the intervention of her immediate superior or suggestions to involve her husband or the works council were able to persuade the plaintiff to give in. The plaintiff was repeatedly informed of the violation of domiciliary rights and her contractual obligations. She was threatened with dismissal and the involvement of the police. Only when the police were called did the plaintiff leave her supervisor's room. She was then banned from the premises in writing and released from her work duties. She had to leave the company premises under police escort. The next morning, the plaintiff sent an email to a large number of employees in which she incompletely described the situation and attacked her superiors without justification and in an inappropriate tone. The defendant offered the plaintiff an examination by the company doctor and company social counseling. The plaintiff refused both. A few days later, she was given the opportunity to comment on a planned extraordinary dismissal for conduct-related reasons. Despite the statement and objection of the works council, a dismissal without notice, alternatively with notice, for conduct-related reasons was issued, against which the plaintiff filed an action for unfair dismissal.

The courts weighed up the interests of the plaintiff in maintaining her employment relationship against the interests of the defendant in terminating the employment relationship. At first instance, this weighing up was in the plaintiff's favor. The termination without notice as well as the alternative termination with notice were declared invalid. The Regional Labor Court, on the other hand, deemed the termination without notice to be inadmissible, but the termination with notice to be effective.

The numerous de-escalating measures taken by the defendant and the opportunity to comment before the dismissal was announced spoke in favor of the defendant. On the other hand, the long period of employment of 22 years and the previously undisputed employment relationship also weighed heavily in the plaintiff's favor. As a result, the court considered the sit-in to be a serious breach of employment law. The fact that the plaintiff showed a lack of understanding and refused to recognize any faults in her conduct during the hearing was particularly detrimental to her. Due to the numerous requests from the employer and the verbal warning (reference to the breach of duty under employment law in connection with a threat of dismissal), as well as the disturbance of industrial peace by the e-mail the next day, an act in the heat of passion can also be ruled out. Nor were there any indications that could explain the plaintiff's behavior in medical terms. In the opinion of the Higher Labor Court, the conduct was unacceptable for a manager who is supposed to be a role model for other employees.

As a result, the plaintiff's conduct constituted a sustained and serious breach of duty, even if it could not be explained rationally. The conduct is suitable to constitute good cause "per se" for termination without notice. However, in the opinion of the court, the defendant can reasonably be expected to employ the plaintiff until the end of the notice period due to her long period of employment. A warning would not have been sufficient due to the lack of insight, as the relationship of trust had been massively disturbed.