Even though the Employee who Systematically Overslept Constituted Culpable Behaviour; it was not Seriously Culpable

A bus driver who continued to frequently oversleep, even after several warnings and after the employer had offered him support, constituted culpable conduct, so that the Sub-district Court dissolved the employment contract. However, the employee’s conduct was not seriously culpable, so that the notice period had to be observed and the transitional allowance was due.

A bus driver worked for a public transport company. He had started working in 2010 and had joined the current employer in 2016 as a result of the employer’s transfer of the concession for the bus transport. Since the autumn of 2017, the employee frequently overslept.
In October 2017, the employer discussed this fact with his employee.
In June 2019, the employee again overslept a number of times. The employer invited him for an explanation and their conversation was confirmed to the employee by letter.
When the employee overslept once again in October 2019, the employer offered support in the form of coaching by a psychologist. The employee accepted this support and the programme was successfully completed in 2020. Also during the coaching programme, the employee overslept three times. The employer discussed this with the employee again and a written warning statement followed, explaining that a disciplinary action would be the next step.
When, shortly afterwards, the employee arrived late for the second part of his broken shift, because he had made an error in the starting time, the employer gave him an official warning.
In July 2020, things went wrong again. This time, the employee received a final official warning with a probation for one year.
Following a discussion about frequent absenteeism in January 2021, the employer offered a multidisciplinary track, consisting of a combination of sport/movement and psychological coaching. The employee also successfully completed this programme.
In October 2021, the employee, again, overslept twice. In a meeting with the employee, in which the employee had himself assisted by the trade union, the employer announced that the employee would be summarily dismissed if it happens again. The employee was asked to think about a possible alternative for support. In a follow-up interview it was agreed that the employee's working hours would be reduced from 40 hours to 36 hours and that the employee would be scheduled for broken shifts slightly less frequently.
In an evaluation interview in March 2020, the employee indicated that things were going well and that he no longer had to make an effort to arrive on time.
But, when things went wrong again in August 2022, the employee was exempted from work. After the employee had rejected a proposal to terminate the employment contract, the employer submitted a request to the Sub-district Court for dissolution of the employment contract.
In the request, the employer drew attention to the great importance of correct application of the timetable. For any ride with a delay of over three minutes, the employer did not receive payment. For that reason, there was one spare driver and one spare bus available on a total of 340 rides, but it was not the intention to use them in case of oversleeping colleagues.
The employee had pointed out that psychological problems were the reason that he slept poorly and that he had difficulty waking up then. Oversleeping just happened to him despite the fact that he had activated several alarm clocks. The psychological problems were the result of private problems. But also the fact that he had received an official warning after the programme with the employer's psychologist, because he had made an error in the duty roster, had had an effect on the psychological problems, according to the employee. In periods when he was doing well, the employee said, he did not encounter any sleeping problems.
The Sub-district Court took the view that an employer can require a bus driver to start his shift punctually, regardless of the starting time. Oversleeping lies within the control of the employee. There was no underlying illness, even if private problems affected the employee’s mental condition. Being on time for work is one of the primary obligations of an employee. Failure to comply with this obligation constitutes culpable conduct or omission on the part of the employee. Since the employer had given the employee sufficient time for improvement, had offered support on two occasions, had always kept in touch with the employee and had also asked the employee what further help he needed, the employer could not reasonably be expected to have the employment contract continued. Another factor that played a role was that the employee had not declared that the problems were expected to disappear in the near future.
Although the employee’s behaviour was culpable and justified dissolution of the employment contract, the Sub-district Court believed that it had been not seriously culpable.
This implied that the employer had to pay the transitional allowance and that the applicable notice period should be observed for determining the date of dissolution of the employment contract.

A requirement for dissolution of an employment contract is that the employee has behaved culpably and that, as its result, the employer cannot reasonably be expected to continue the employment contract. After the employee had been warned so many times and after the employer had offered support on two occasions, a stage had been reached where, according to the Sub-district Court, the endless continuation of oversleep justified dissolution of the employment contract. In the above case, the employer had warned quite frequently and even offered support on two occasions. Partly in view of the employer's interest in having the work start on time, we believe that the moment at which termination of the employment contract would have been justified had already been reached at least in October 2021.
In order to have the obligation to pay the transitional allowance lapsed and for not having to observe the notice period when determining the date of dissolution of the employment contract by the Sub-district Court, the requirement is that the employee’s behaviour must have been seriously culpable. This was the legislator’s intention for exceptional cases in which the seriously culpable nature of the employee's behaviour is obvious, such as theft, embezzlement or fraud. It is understandable that the Sub-district Court decided that comparing this with the employee’s behaviour would be disproportionate.