Repeated tardiness may justify ordinary termination of the employment relationship
If an employee is late for work on four consecutive working days, the repeated tardiness may justify the ordinary termination of the employment relationship. If the employee also shows no awareness of wrongdoing, no prior warning of the misconduct is required. This was the conclusion reached by the Schleswig-Holstein Regional Labor Court in its ruling of August 31, 2021 – 1 Sa 70 öD/21.
The decision was based on the following facts:
A service employee at a social court in Schleswig-Holstein, who has been employed since 2006, received a termination without notice or, in the alternative, an ordinary termination with notice in a letter dated October 31, 2019. The reason given for the termination was repeated lateness. The employee assigned to the court mailroom was the only employee in the mailroom on the four days she was late. She justified her late start to work by taking medication and the resulting lack of sleep.
Decision of the Labor Court:
After receiving the notice of termination, the employee filed an action for protection against dismissal with the labor court.
After taking evidence, the Flensburg Labor Court came to the conclusion that the termination without notice was invalid, while the Labor Court considered the ordinary termination for behavioral reasons to be valid.
The plaintiff appealed against the first-instance decision to the Schleswig-Holstein Regional Labor Court (LAG).
Decision of the LAG: Ordinary termination due to repeated late commencement of work is effective
The LAG was also of the opinion that the plaintiff’s repeated tardiness justified the ordinary termination. The employee had repeatedly violated her contractual obligation to start work on time. The lack of sleep she cited was not a suitable excuse for the delays. This is because these are attributable to their private circumstances and are not suitable to excuse the breaches of duty.
The plaintiff did not need to be warned before the ordinary termination:
The LAG considered a prior warning prior to issuing the notice of termination to be unnecessary. It is true that, as a general rule, a relevant warning is required prior to the issuance of an ordinary termination for reasons of conduct. In accordance with the principle of proportionality, this is not required in the following cases:
- if it is already apparent at the time the notice of termination is issued that a change in behavior is not to be expected in the future even after a warning has been issued
- it is such a serious breach of duty that even its acceptance for the first time is unreasonable for the employer according to objective standards and thus obviously excluded.
A warning could therefore be dispensable in individual cases if special circumstances prove that this would not have been promising. This is to be assumed in particular if it is recognizable that the employee is not at all willing to behave in accordance with the contract.
In the present case, the LAG was convinced that the plaintiff was not willing to change her behavior. Thus, despite repeatedly being late, she had not taken any action to prevent oversleeping again. Moreover, she had explained herself at the oral hearing to the effect that it was not so bad if she was late. From this, the LAG drew the conclusion that the plaintiff lacked an awareness of wrongdoing, which made a warning before issuing the notice of termination superfluous. The repeated tardiness justified the dismissal.
Conclusion:
If an employee is late for work, this is certainly not a reason for dismissal. If, on the other hand, this behavior repeats itself and the employee is not impressed by a warning or otherwise shows that he is not willing to change his behavior, the employer does not have to accept the employee’s misconduct and can issue a notice of termination.
This makes it clear that repeated tardiness is not a trivial matter and can have serious consequences under labor law.
Responding to a Notice of Termination:
If you have received a notice of termination, you should not waste precious time and seek legal advice immediately. As a competent contact person with years of union experience, I am at your disposal. Together with you, I will check whether the termination is effective or whether an action should be brought against it.
Please contact me by e-mail or phone. In a personal meeting appointment we can discuss the details and further procedure.
