LAG Köln - 7 Sa 635/23
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| LAG Köln - 7 Sa 635/23 | |
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| Court: | LAG Köln (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | § 26(1)(2) BDSG |
| Decided: | 11.02.2025 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 7 Sa 635/23 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | NRW (in German) |
| Initial Contributor: | Greenlove |
The court ruled that the hiring of a private detective to investigate the suspicion of working time fraud was lawful. The violation of the employee's fundamental rights was of low intensity and did not result in an exclusion of evidence.
English Summary
Facts
The employer of a company suspected that his employee was pursuing private activities during working hours, using the company car for private purposes and not recording this as break time.
The employer then hired a private detective to observe his employee on individual days. In November 2022, the detective observed him on five days and revealed multiple work violations. In particular, the employee took longer breaks at the bakery, went to private photo shoots or went to his girlfriend's place. As he worked as a ticket inspector, it was impossible for him to continue working during these periods.
In order to definitively establish the suspicion, the detective was to observe the employee over a fixed period from 1 December 2022 to 16 December 2022. During this period, the employer was photographed, documented and a GPS was attached to his company car. The detective and the employer were able to establish that he had committed working time fraud totaling almost 26 hours. As a result, he was fired.
Holding
The court ruled that the observation of the employee by the detective was admissible under Section 26(1)(2) BSDS and that there was no prohibition on the use of evidence.
The court held, that the observation of the employee did violate his personal rights and the right to informational self-determination. However, the violation was of low intensity, as he was only observed during his shift times over a period of a few days. The employee must also pay the detective's fee in the amount of €21,608.90, as there was reasonable suspicion of working time fraud.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
1 Facts 2 The parties are essentially disputing the validity of an extraordinary dismissal for cause and, alternatively, for suspicion, as well as the reimbursement of detective costs. 3 The plaintiff, born in 1970, has been employed as a ticket inspector by the defendant, a public transport company, since April 1, 2009. His average salary is approximately €3,300 gross per month. 4 He is a substitute member of the defendant's works council; he most recently served on the works council in November 2022. 5 Based on a works agreement, the working hours and break times of the defendant's employees are recorded using time recording system A. The ticket inspectors use the time recording system via a mobile app. 6 On December 9, 2022, the plaintiff clocked in at 10:58 a.m., took a break from 4:05 p.m. to 4:35 p.m., and clocked out at 7:22 p.m. 7 On December 12, 2022, the plaintiff clocked in at 6:55 a.m., took a break from 10:44 a.m. to 11:15 a.m., and clocked out at 3:01 p.m. 8 On December 13, 2022, the plaintiff clocked in at 6:42 a.m., took a break from 11:29 a.m. to 12:05 p.m., and clocked out at 2:54 p.m. 9 On December 16, 2022, the plaintiff clocked in at 6:50 a.m., took a break from 10:24 a.m. to 10:55 a.m., and clocked out at 3:10 p.m. 10 On December 20, 2022, he was heard on the allegation of continued working time fraud in the presence of the employer representatives Mr. Br, Ms. S, Mr. Mo, Ms. Hö, and the deputy works council chairman R. 11 By letter dated January 2, 2023, which was received by the plaintiff on the same day, the defendant terminated the employment relationship without notice. 12 On January 11, 2023, the plaintiff filed a wrongful termination suit with the Cologne Labor Court. 13 The plaintiff claimed not to have committed working time fraud. The time recording system did not function reliably, and he held team meetings in the mosque and bakeries. 14 He disputed the proper involvement of the works council in ordering the surveillance and in the termination. Due to a violation of the General Data Protection Regulation and his right to informational self-determination, there is a prohibition on presenting facts and using evidence. The engagement of a private investigator was not necessary. 15 The plaintiff filed a motion in the first instance: 16171. to determine that the employment relationship between the parties was not terminated by the termination without notice dated January 2, 2023; 18192. to order the defendant to issue him a favorable, qualified interim reference and – alternatively, in the event of termination of the employment relationship – a corresponding final reference; 20213. to order the defendant to continue employing him as an inspector/auditor under the previous conditions until the final settlement of this legal dispute. 22 The defendant has requested that 23241. the action be dismissed; 25262. by way of counterclaim, the plaintiff be ordered to pay her EUR 21,608.90 plus interest at a rate of five percentage points above the applicable base interest rate since the date this application became legally binding (March 8, 2023). 27 The plaintiff has requested that 28 the counterclaim be dismissed. 29 The defendant claimed that, during two exchanges on July 7 and 15, 2022, with the security company W Security GmbH, which works for it, it was discovered by chance that there were irregularities regarding the recording of working hours and the actual working hours of the plaintiff. Among other things, the employees of W Security GmbH reported that the plaintiff had visited the gym, the Hü Mosque, and the hairdresser during working hours. They also mentioned private photo shoots that the plaintiff had held on the banks of the Rhine during his contractually agreed working hours. 30 In order to investigate these serious allegations, the defendant commissioned the We detective agency to observe the plaintiff irregularly on individual days. The We detective agency complied and initially observed the plaintiff on five days in November 2022 during his contractual working hours. On the relevant dates (November 4, 2022, November 7, 2022, November 8, 2022, November 9, 2022, and November 11, 2022), multiple violations of working hours were identified. Based on these findings, in particular, what the defendant considered to be significant working time fraud on November 11, 2022, the detective agency was commissioned to monitor the plaintiff again over a fixed period (December 2, 2022 - December 16, 2022) in order to obtain truly reliable results. 31 Regarding the detailed results of the investigation, the defendant referred to the detectives' report in Exhibit CBH 2 (pages 73 et seq. of the first-instance file). During the observation, it was determined, in particular, that the plaintiff had repeatedly visited his girlfriend's address in F or in bakeries/cafés during his working hours – without a corresponding break entry in the time recording system A. On several occasions, he took longer breaks than those recorded in A. No evidence or reports of any ticket checks during these periods were available. During his hearing, the plaintiff only made blanket defensive claims for the times mentioned and was unable to explain the facts presented to him in their entirety. 32 The works council was consulted before the termination was announced with the letter submitted as Exhibit CBH 40 (pages 312 ff. of the first instance file). The deputy chairman also participated in the plaintiff's hearing on December 20, 2022, and therefore already had comprehensive knowledge of the facts of the termination. 33 The defendant claimed that the plaintiff was at least 38 minutes on 4 November 2022, 61 minutes on 7 November 2022, 94 minutes on 8 November 2022, 160 minutes on 9 November 2022, 150 minutes on 11 November 2022, 167 minutes on 2 December 2022, 31 minutes on 5 December 2022, 103 minutes on 6 December 2022, 61 minutes on 7 December 2022, 134 minutes on 8 December 2022, 61 minutes on 9 December 2022, 138 minutes on 12 December 2022, 13 December 2022 He failed to perform his work for 41 minutes on December 14, 2022, 56 minutes on December 15, 2022, and a total of 207 minutes on December 16, 2022. He also failed to record corresponding breaks, meaning that he still received the full remuneration agreed upon in his employment contract. She compared the observed periods of private activities with the working time entries made by the plaintiff himself in the time recording system A via an app for the corresponding days (see Exhibits CBH 3 and 4 to the SS dated March 6, 2023, pages 177 ff. of the first instance file). Furthermore, the plaintiff used the vehicle provided to him solely for business purposes for private purposes, even though this was not permitted. 34 The detective agency invoiced a total of €21,608.90 plus 19% VAT for the surveillance of the plaintiff. Both invoices were paid in advance by their legal representatives, and the invoice amount was subsequently reimbursed by them. 35 The defendant justified the termination as an extraordinary termination for a specific offense and, alternatively, as an extraordinary termination based on suspicion due to the plaintiff's continued time fraud totaling almost 26 hours. Given the particularly blatant extent of the time fraud, the termination was the mildest means of addressing the plaintiff's lack of contractual compliance. The plaintiff showed no insight but attempted to justify his culpable breaches of duty with, in some cases, patently false allegations. At no point did he express regret or remorse for his continued misconduct. 36 After extensively taking evidence through the examination of witnesses Re, Br, Mo, Me, Wei, Z, K, and L, the Labor Court dismissed the claim, except for the request for a final certificate, and granted the counterclaim by judgment of November 8, 2023. In support of its decision, it essentially stated that the plaintiff had failed to record significant breaks taken by him on at least December 9, 12, 13, and 16, 2022. The observation by the detective agency was justified, there were no prohibitions on the use of evidence, and the works council had been duly heard. Furthermore, the plaintiff owes the defendant reimbursement of the detective costs as damages. 37 For details of the taking of evidence, reference is made to the minutes of the Labor Court hearing of November 8, 2023 (pages 488 ff. of the first-instance file). 38 The plaintiff filed an appeal against the Labor Court's judgment served on him on December 8, 2023, on December 11, 2023, and – after the deadline for filing the appeal was extended to March 8, 2024 – substantiated his appeal on March 7, 2024. 39 The plaintiff is of the opinion that no specific working hours were agreed upon. Therefore, there can be no breach of duty. The Labor Court should have specified where the plaintiff could and should have performed his administrative activities, i.e., office work, where he could and should have made arrangements with his colleagues, and where he should have relieved himself. A did not function reliably, and he did not authorize the data collection. Since the bakery was a regular destination for the plaintiff and his colleagues, it would have been reasonable to assume that work was being carried out there and that it was a meeting place where work was prepared and followed up. The surveillance by the detectives was unlawful. 40 There is no claim for reimbursement of the detective costs because there is no strict liability of the employee towards an employer. 41 The plaintiff requests, in essence, 42 amending the judgment of the Cologne Labor Court of November 8, 2023 – 18 Ca 206/23 – 43441. to declare that the employment relationship between the parties to the dispute was not terminated by the defendant's termination without notice of January 2, 2023; 45462. to order the defendant to continue employing the plaintiff as an inspector/auditor under the previous conditions until the final and binding conclusion of the present legal dispute; 47483. to dismiss the counterclaim. 49 The defendant requests that 50 the appeal be dismissed. 51 It defends the judgment under appeal by repeating and expanding on its arguments from the first instance. 52 For further details of the facts and issues in dispute, reference is made to the content of the pleadings of the first and second instance, including the attachments, as well as to the minutes of the hearings. 53 Reasons for the Decision 54 I. The plaintiff's appeal is admissible because it is admissible (Section 64 (1) and (2) of the Labor Court Act (ArbGG)) and was filed and substantiated in due form and within the time limit (Sections 66 (1), 64 (6) sentence 1 of the Labor Court Act (ArbGG), Sections 519 and 520 of the Code of Civil Procedure (ZPO). 55 II. The appeal is unsuccessful on the merits. The Labor Court correctly ruled and adequately reasoned for its decision. The Chamber agrees with this reasoning. The plaintiff's arguments in the appeal court merely give rise to the following additional comments: 561. The extraordinary termination of January 2, 2023, is effective and terminated the parties' employment relationship upon its receipt. 57a) Pursuant to Section 626 (1) of the German Civil Code (BGB), an employment relationship may be terminated for good cause without observing a period of notice if there are facts that make it unreasonable for the terminating party to continue the employment relationship even until the expiration of the notice period, taking into account all the circumstances of the individual case and balancing the interests of both contracting parties. For this purpose, it must first be examined whether the facts, without their specific circumstances, are "in themselves," i.e., typically suitable as a good cause. It is then necessary to further examine whether the terminating party can reasonably be expected to continue the employment relationship, taking into account the specific circumstances of the case and balancing the interests of both contracting parties – at least until the expiry of the (fictitious) notice period (Federal Labor Court, judgment of December 13, 2018 – 2 AZR 370/18 –, para. 15, juris). 58 An employee's intentional breach of their obligation to correctly document the hours worked, which are difficult for the employer to monitor, is in itself sufficient to constitute an important reason for extraordinary termination within the meaning of Section 626 (1) of the German Civil Code (BGB). This applies to the intentional misuse of a time clock as well as to the knowing and intentionally false issuance of corresponding forms. The decisive factor here is not the criminal assessment, but the serious breach of trust associated with the breach of duty. The employer must be able to rely on the accurate documentation of its employees' working hours. If the employer assigns the proof of working hours to the employees themselves and an employee knowingly and intentionally fills out the forms provided for this purpose incorrectly, this generally constitutes a serious breach of trust. The employee thereby significantly violates his duty of consideration (Section 241 (2) of the German Civil Code) towards the employer (Federal Labor Court, judgment of December 13, 2018 - 2 AZR 370/18 -, para. 17, juris). 59b) Based on these requirements, there is good cause for the plaintiff's dismissal. This is because the plaintiff intentionally failed to document significant break times in the time recording system A at least on December 9, 12, 13, and 16, 2022, although he was obligated to do so under the works agreement and a secondary obligation under the employment contract. 60 The Labor Court correctly found (Section 529 (1) No. 1 of the Code of Civil Procedure) that the plaintiff engaged in private activities on December 9, 2022, between 3:18 p.m. and 3:59 p.m. without recording this as break time. Since he left his girlfriend Ms. G's house at 3:58 p.m., it can be assumed that he had been there since his arrival. It can be ruled out that he checked tickets at his girlfriend's apartment. It is neither apparent nor stated that he performed any other work there. No break time was recorded in A. No specific problems with time recording are apparent, nor have they been specifically presented by the plaintiff. He does not even claim that he attempted to record the time spent at his girlfriend's apartment as break time. The same applies to the approximately 45-minute visit to his girlfriend during his working hours on December 16, 2022. 61 The Labor Court also correctly found that on December 13, 2022, the plaintiff engaged in private activities in the form of a visit to a bakery between 6:53 a.m. and 7:31 a.m. without recording this as a break time. The same applies to December 12, 2022, between 1:35 p.m. and 2:07 p.m. and December 16, 2022, from 7:01 a.m. to 7:50 a.m. It is not apparent that the plaintiff performed any work during his extensive bakery visits. The plaintiff, who bears a secondary burden of proof in this regard, does not specifically claim this for these days. No break time was recorded in A. No specific problems with time recording are apparent, nor have they been specifically presented by the plaintiff. 62c) The Labor Court also correctly assumed that the observation of the plaintiff by the detective agency was permissible under Section 26 (1) Sentence 2 of the Federal Data Protection Act (BDSG) and that there is no prohibition on the use of evidence. The Chamber follows the reasoning of the Labor Court and refrains from repeating the statement. 63 Even if one were to see things differently and consider surveillance of the plaintiff by a detective agency to be inadmissible, this would not result in a prohibition on the use of evidence. 64 A prohibition on the presentation of facts or the use of evidence can only be considered - especially within the scope of the GDPR - if the non-consideration of submissions or evidence is based on a legal obligation under Union law or Article 2 (1) in conjunction with This generally requires that the protective purposes of the fundamental right violated during the acquisition of the information conflict with the use of the knowledge or evidence in the legal dispute and that the use itself would therefore constitute a violation of fundamental rights. This is the case if the court, which is directly bound by fundamental rights under Article 1(3) of the Basic Law, interferes without justification in a constitutionally protected position of a party to the proceedings by perpetuating or deepening a violation of personality rights by a private individual. Beyond their duty to refrain from unjustified encroachments on fundamental rights, the courts may at most be required, due to a constitutional duty of protection, to actively counter a violation of general personality rights by private individuals and to disregard factual submissions or evidence presented by a party for reasons of general prevention, if otherwise the violated protective norm would be meaningless in the cases in question (Federal Labor Court, judgment of June 29, 2023 – 2 AZR 297/22 –, para. 31, juris). 66 The surveillance of the plaintiff by detectives who observe, photograph, and document, as well as the attachment of a GPS transmitter to the company vehicle used during shift hours, does indeed constitute an encroachment on his personality rights and his right to informational self-determination. However, this encroachment is of minor intensity because it only occurred during his shift in public traffic over a period of a few days, and practically only what any passerby could have also observed was documented. The "Orwellian surveillance" alleged by the plaintiff was by no means present. Therefore, disregarding the findings obtained from this would not necessarily be necessary, even if the surveillance were unlawful—which is not the case here. 67d) The works council was comprehensively and properly heard in the hearing letter dated December 27, 2022 (pages 312-333 of the first-instance file). The plaintiff did not raise any specific substantive objections in this regard. Based on the evidence, the labor court correctly established (Section 529 (1) No. 1 of the Code of Civil Procedure) that this hearing letter was received by the works council on December 27, 2022. 682. The defendant is entitled to reimbursement of the detective costs in the amount of EUR 21,608.90 net from the plaintiff under Sections 280 (1) and 249 of the German Civil Code (BGB). 69a) According to the case law of the Federal Labor Court, which the Chamber agrees with, the employee must reimburse the employer for the necessary costs incurred by a private investigator due to a breach of employment contract obligations (Section 280 (1) of the German Civil Code (BGB)) if the employer assigns the surveillance of the employee to a private investigator based on concrete suspicion of a crime and the employee is convicted of an intentional breach of contract. In this respect, these are not precautionary costs that must be borne by the employer as a permanent business expense regardless of specific damaging events. According to Section 249 of the German Civil Code (BGB), the obligation to pay damages extends to all expenses incurred by the injured party insofar as these can be regarded as necessary under the circumstances of the case. This also includes the prevention of impending disadvantages if concrete grounds for suspicion arise in this regard. Section 254 of the German Civil Code (BGB) requires the injured party to take into account the injuring party’s interest in minimizing the damage. It follows that the employer is only entitled to reimbursement for those measures that a reasonable, economically minded employer would have taken, under the circumstances of the individual case, to eliminate the disruption or prevent damage, not only as expedient but also as necessary (Federal Labor Court, judgment of September 26, 2013 - 8 AZR 1026/12 -, para. 22, juris). 70b) These requirements are met. 71 The defendant was entitled to commission a detective agency to monitor the plaintiff. Based on the statements of the employees of W Security GmbH, the defendant could and should have suspected that the plaintiff was committing time fraud by pursuing private activities such as photo shoots, visiting mosques, and visiting the hairdresser during his working hours. 72 The plaintiff was convicted of an intentional breach of contract, which led to the effective date of the termination without notice. 73 The plaintiff did not specifically dispute the amount of the detective costs and thus the damages. The fact that the defendant ultimately bore the detective costs as reimbursement of its lawyers' expenses was established by the Labor Court through the taking of evidence. 74c) The interest claim arises from Sections 288 and 291 of the German Civil Code (BGB). 75III. The plaintiff must bear the costs of the appeal pursuant to Section 97 (1) of the Code of Civil Procedure (ZPO). There are no grounds for leave to appeal, as the decision is based on the circumstances of the present case.
