Flexible working hours are commonplace in many companies today. Notwithstanding this, employees must perform the work they owe to their employer pursuant to their employment contract, otherwise they may be faced with exceptional notice of dismissal.

A lot of companies have since moved away from a system of rigid working hours and now offer flexible working hours. That being said, the working hours owed by an employee, among other things, are agreed and laid out in his employment contract. Employees have to fulfil this contractual obligation and are not allowed to constantly build up their working hours deficit. We at the commercial law firm GRP Rainer Rechtsanwälte note that if an employee fails to perform the work as stipulated in the employment contract, this may constitute good cause justifying exceptional notice of dismissal.

Such were the circumstances that led to the Landesarbeitsgericht (LAG) Hamburg [Regional Labour Court of Hamburg] upholding the effectiveness of a notice of exceptional dismissal in its ruling of November 2, 2016. The notice was issued because the employee in question had continuously worked up his working hours deficit again and again (Az.: 5 Sa 19/16).

In the instant case, the employment relationship had already existed for a period of more than 20 years. Based on a collective wage agreement, the employer could only terminate the employment relationship if it had good cause for doing so. Over the years, disputes repeatedly arose between employer and employee for a variety of reasons. In addition, the employer had already issued various formal warnings. The employer had also rebuked the employee on a number of occasions because the latter’s working time account was regularly in deficit. However, the employee failed to work off his deficit and instead continued to further contribute towards this. In the end, he had worked up a deficit of just under 56 hours, despite the fact that he had agreed to a mere 20 hours with his employer. In consultation with the staff council, the employer finally issued notice of dismissal with immediate effect.

The employee’s legal action opposing his dismissal was unsuccessful before the LAG Hamburg. The Court held that notice of dismissal with immediate effect had been effective. It stated that performing the work owed pursuant to the employment contract is one of an employee’s main obligations, a breach of which constitutes good cause justifying exceptional notice of dismissal. In the case in question, the employee was said to have failed to work off his working hours deficit despite repeatedly being called on to do so and instead continued to contribute towards this. The Court went on to say that a less severe reaction in the form of a formal warning would no longer have been sufficient in response to the employee’s misconduct. The LAG concluded that it was no longer reasonable to expect the employer to continue the employment relationship.

Whether exceptional notice of dismissal is effective or not always comes down to the circumstances of each individual case. Accordingly, notices ought to be thoroughly prepared. Lawyers who are experienced in the field of employment law can advise employers.

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