Contrary to company regulations, one employee does not enter her smoking breaks in the working time record. As a result, more than 20 breaks were incorrectly recorded as working hours within a short period of time - the employer sees working time fraud in this and terminates without notice, alternatively on time - rightly so?
The Thuringian State Labor Court (LAG), Az.: 1 Sa 18/21 decided that fraudulent working hours and persistent violations of the obligation to record working hours can justify termination without notice even after 30 years of employment. Work fraud of this quality occurs when up to six smoking breaks per day are recorded as working time rather than as breaks, contrary to company regulations. The serious breach of trust associated with the breach of duty is decisive. This is not excused by nicotine addiction.
How was the case exactly?
A long-time employee of an employment agency repeatedly violated the applicable service agreement on making working hours more flexible by not documenting her smoking breaks. The service agreement regulated a working time account with a flextime agreement and listed the obligation to record the working time each time you entered and left the office building, this also applied to recording smoking breaks in general and smoking breaks in particular.
It turned out that in January 2019 the employee had repeatedly not recorded her smoking breaks as breaks, so that these times were incorrectly recorded as working hours in the working time account. In quick succession, there were more than 20 breaks over a total of 7 days in a month, the payment for which was fraudulently taken, sometimes up to six times a day. The employee admitted this at the hearing on the suspected manipulation of working hours and, in addition to an apology, pointed out that as a smoker she was addicted to nicotine and needed regular cigarette breaks. She has also smoked for decades and until two years ago the "wild breaks" were tolerated in practice, so this is still allowed due to operational practice. In addition, she always smoked in the group and the other colleagues were not dismissed. However, the employer side resigned without notice after hearing the staff council, alternatively in good time. The employee filed a lawsuit against unfair dismissal.
The judgment
In the court of appeal, it was "only" about the timely termination, but the LAG judges indicate that persistent fraud in working hours and multiple violations of documentation requirements can also justify termination without notice. Ordinary termination is then even more effective. 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 correct documentation of the working hours of employees participating in the flextime model.
The obligation to record the breaks was also known, which is why there was an intentional violation. To the extent that the plaintiff, by arguing that she had always smoked in a group but was the only one who had been dismissed, wanted to assert a violation of the principle of equal treatment, was unsuccessful because she did not state anything at all as to whether these other smokers also took breaks like she did not recorded. It was therefore not at all clear whether the facts were comparable at all. Because of the service agreement with the express obligation to record smoking breaks, any operational practice of "wild smoking breaks" is irrelevant. The reported nicotine addiction could at best explain the larger number of smoking breaks, which the employee is not accused of. However, the addiction does not justify the persistent violation of documentation requirements.
In the opinion of the judges, the claimant's social data, in particular not her 30 years of service, did not help the plaintiff in the necessary weighing of interests when she persistently swindled paid breaks. A warning is unnecessary in such a situation with more than 20 fraudulent breaks within a few days. The timely termination was considered effective by the LAG.
Attorney Dr. Alexandra Henkel is a specialist lawyer for labor law, business mediator, business coach and certified data protection officer (TÜV).
