Unjustified Absence is Seriously Culpable Behaviour

The Sub-district Court dissolved the employment contract with an employee who made the employer's computer system give the impression that he was working, but who in fact did not or hardly worked. Since the Sub-district Court held the opinion that this was seriously culpable behaviour, the employment contract was dissolved without observance of the notice period and without the obligation for the employer to pay the transitional allowance.

Since 2013, a foreign employee has been working for a company that implements projects in the area of engineering, procurement, construction, maintenance and management of large projects. During the COVID-19 pandemic, the company's employees in principle worked at home. As of February 18, 2022, however, the employees were expected to work in the office for half of their working hours again. It is the practice in the company that its employees enter and exit the company premises through the main entrance, using a personalized badge. This badge also registers the checks-in and out. Also within the building several doors open by means of this badge. There is one emergency door, however, leading to the car park, which does not require a badge. The emergency door must remain closed unless there is an emergency.
In April 2022, the company found that the emergency door had been opened several times. After having viewed the camera images and the registration of the employees' personalized badges, the employer concluded that the employee had left the building through the emergency door on a number of occasions. The employer then confronted the employee with the fact that on a number of occasions during the previous month he had checked-in, had started his laptop, had left the company building through the emergency door, had walked to the parking lot and had driven away with his car. At the end of the day, the employee had returned to check-out and had left the office building in the regular way.
The employee denied the allegations, except for two doctor's visits. He would have only used the emergency door for a smoke outside the building. Later, the employee also admitted that he had also a nearby gas station a few times to buy cigarettes.
On that occasion, he used the opportunity to ask the employer whether he could continue working at home.
In the end, the employer proposed the employee to terminate the employment contract, but the employee rejected the proposal. Then, the employee was exempted from work and the employer asked the Sub-district Court to dissolve the employment contract. The employer based the request on the fact that in the period from February 23, 2022 to April 20, 2022, on 19 working days, the employee had checked-in as being present in the company system, whereas in fact he had been outside the company premises for a major part of the working day. and had hardly worked. Thus, according to the employer, the employee was guilty of "idling".
The Sub-district Court held the opinion that the employer had, indeed, sufficiently demonstrated that the employee had been absent from the company premises for quite a long time on 19 working days. According to the Sub-district Court, the employee's defence lacked cohesion and was insufficiently substantiated. The employer had also given the employee sufficient opportunity to respond to the allegations.
According to the Sub-district Court, the idling can be classified as "a seriously culpable act or omission".
It implied that the employment contract was dissolved without the employee being entitled to the transitional allowance and without the obligation to observe the notice period. Relocation is not applicable in such a case.
The fact that the employee lived in a country of which he did not speak the language and also the employee’s family situation did not justify the employee’s entitlement to the transitional allowance.
The employee had requested a fair compensation of € 250,000, but since there were no seriously culpable acts or omissions on the part of the employer, but rather on the part of the employee, the Sub-district Court rejected the compensation.

The question is whether "idling", as the Sub-district Court judge called the employee's behaviour, following the employer's example, would also have constituted an urgent reason for a summary dismissal. At least from an ex ante point of view, this seems realistic. It would have saved the employer three months' salary, paid between the exemption from work and the date on which the employment contract was terminated, which was shortly after the date of the Sub-district Court’s decision.