No termination without notice

The LArbG Kiel has decided that if an employee is absent on a single day, an employer must first issue a warning before he can terminate without notice, even if the employment relationship has only existed for two days.

The plaintiff started working as a paralegal and notary assistant on 01.08.2019. On 05.08. as well as on 06.08.2019, she did not work as agreed, as her son was accustomed to work in the day-care centre. In a letter dated 05.08.2019, sent to the plaintiff in advance by e-mail on 05.08.2019 and received in original on 06.08.2019, the defendant terminated the employment relationship as of 12.08.2019. The plaintiff did not appear for work on 07. and 08.08.2019. By e-mail dated 08.08.2019, the defendant terminated the employment relationship without notice. The notice of termination was received by the plaintiff in writing on 09.08.2019. Also on 09.08.2019, the defendant received a certificate of incapacity for work for 08. and 09.08.2019. The 17.34 hours worked on 01 and 02 August 2019 were subsequently invoiced by the defendant and the resulting remuneration was paid.
In her action for dismissal protection, the plaintiff finally only objected to the second, immediate dismissal and demanded compliance with the statutory period of notice with regard to the first dismissal. The defendant considered that the termination without notice was valid. The plaintiff had worked for only two days and then absent without excuse. This was a “failed employment relationship”. A warning notice was clearly unnecessary in this case. Moreover, the shortening of the period of notice during the probationary period was effectively agreed between the parties. It is contrary to the principle of equality if an abbreviation can only be agreed by parties to a collective agreement but not by the parties to the employment contract.
The Labour Court held that the extraordinary termination without notice was invalid.

The LArbG Kiel confirmed the decision of the lower court.

In the opinion of the Regional Labour Court, a prior warning is also necessary in this constellation. According to the court, there were no indications that the plaintiff had continued to remain absent without excuse despite the threat of dismissal. Nor was her breach of duty so serious that a warning notice would not have been necessary by way of exception. By terminating the probationary period with one week’s notice, the defendant had already made it clear to the plaintiff that it had no interest in her continuing to work for the company.

Contrary to the defendant’s view, he had to comply with the two-week statutory period of notice during the probationary period. The shorter notice period in the employment contract was invalid. It was not contrary to equality if only the parties to the collective agreement were entitled to agree shorter periods of notice. Their parity of negotiation leads to an appropriate consideration of the interests of employers and employees. There is no comparable parity between the parties to the individual employment contract.

The Landesarbeitsgericht did not allow the appeal.

First instance
ArbG Elmshorn, Urt. v. 21.01.2020 – 3 Ca 1180 d/19