Immediate notice of dismissal
The LArbG Hamm has decided that the Sparkasse Herne has rightly terminated without notice the contract of a 54-year-old employee who had found only one pack of baby food and one pack of washing powder in a delivered money case.
The cashier, who had been employed since 1991, had found only one pack of baby food and one pack of washing powder each when opening a money case delivered by the Bundesbank in May 2015, according to her own account. The amount of 115,000 euros documented in 50 euro bills for the sealed suitcase, however, remained missing. The employee herself had ordered this amount the day before, which was unusual in terms of amount and denomination according to the Sparkasse's presentation. The Sparkasse justified its dismissal in April 2016 by stating that, as a result of its own efforts to clarify the situation on the basis of numerous indications against the employee, at least the urgent suspicion of a property offence was justified to her disadvantage.
In their verdicts of 4 October 2016 (3 Ca 1053/16) and 14 August 2017 (17 Sa 1540/16), ArbG Herne and then LArbG Hamm initially considered the termination invalid. The successful appeal of the defendant to the BAG (judgment of 25.04.2018 - 2 AZR 611/17) led to a referral back to the Higher Labour Court. According to the BAG, this court had to investigate again comprehensively whether, on the basis of the available evidence, it could not be assumed that the plaintiff was the perpetrator.
After further examination, the chamber of the LArbG Hamm before which the case was brought is now convinced that the employee who had been dismissed will take away the money.
The findings of the AG Herne from the parallel criminal proceedings were included in the independent evaluation. In its judgment of 22 May 2019, the court sentenced the plaintiff to a prison sentence of two years and nine months for embezzlement and ordered the confiscation of the amount of money. The sentence has not yet become final.
In its renewed decision, the Regional Labour Court did not allow an appeal to the BAG. The employee who has been unsuccessful with the application for protection against dismissal has the option of lodging a non-admission appeal with the FOPH within a fixed period of time.
Press release of the Ministry of Justice of the State of North Rhine-Westphalia dated 24 October 2019
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