Fristlose Kündigung von „Al Capone“ – Karneval macht`s möglich

Many company carnival parties take place during the carnival season. A case that the LAG Düsseldorf recently had to deal with shows that it is well advised not to get too colorful at such a celebration.

An employee who had been employed as a purchasing clerk for 28 years took part in a carnival celebration on the women's carnival in 2015 on his employer's premises, dressed as “Al Capone”. As is not uncommon on women's carnival, two other employees tried several times to shorten "Al Capone's" tie with the help of scissors, but he resisted. Later there was an argument between the plaintiff and another employee, during which the plaintiff allegedly kicked him in the abdomen and hit him in the face. Specifically, he is said to have poured the contents of a beer glass into his face, a man who wore glasses, and then pushed the front of the empty beer glass into his face, causing the beer glass to shatter. An emergency doctor removed several pieces of glass from his forehead.
The plaintiff defended himself by saying that he was initially insulted by the women who wanted to cut off his tie. He was also continually insulted by the other employee and also in the disputed situation. He first pushed him away and then kicked him without touching him. Ultimately, he feared that the employee would attack him. After that, he no longer has any precise memories. The plaintiff claims that he reacted because he felt threatened due to an anxiety disorder caused by his illness. He was said to be incompetent at the time of the alleged crime.
The employer assessed the employee's behavior as a gross breach of duty and terminated the employment relationship without notice. The LAG Düsseldorf (13 Sa 957/15) now found the employer right in a judgment announced on December 22, 2015. After taking evidence by viewing a video evidence and questioning various witnesses, the court came to the conclusion that the behavior was inexcusable and also justified immediate termination.
The current decision of the LAG Düsseldorf is in line with the case law of the Federal Labor Court - even if the detailed reasons for the judgment are still pending. According to this, assaults between employees are generally suitable as an important reason for the immediate termination, i.e. termination without notice, of the employment relationship (e.g. BAG judgment of September 18, 2008, Ref.: 2 AZR 1039/06). In individual cases, however, it always depends on the seriousness of the breach of duty, and not least on the intensity and consequences of an assault, as to whether the most serious sanction under labor law is justified: immediate dismissal or, if necessary, just a regular dismissal or a mere warning . In the case cited, the LAG Düsseldorf carried out this balancing of interests, which must always be carried out based on the individual circumstances, to the detriment of the employee. There may certainly be individual cases in which a cheerful get-together as part of a company celebration lowers the individual's standard of care somewhat. For example, it can be considered in the employee's favor if derogatory statements are made at a company party under the (general) influence of alcohol (in this sense, for example, the LAG Schleswig-Holstein, judgment of February 28, 1983, Ref.: 5 (2) Sa 529 /82). However, as soon as there is massive physical violence or sexual harassment, such circumstances can usually no longer constitute sufficient exculpatory circumstances.