Case of Emmely

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DGB demo on March 28, 2009 in Berlin “We don't pay for your crisis” with Emmely

The Emmely case was a labor dispute over the termination of a long-term cashier and active trade unionist in the Kaiser's Tengelmann supermarket chain without notice . The case aroused controversial media coverage nationwide in 2009 and sparked a social discussion on minor layoffs.

The cashier, who was often referred to in public as Emmely and whose real name was Barbara Emme (1958–2015), was accused of having redeemed two bottle deposit vouchers worth 1.30 euros that did not belong to her; she was terminated without notice. The Federal Labor Court (BAG) in Erfurt declared the termination on June 10, 2010 to be disproportionate and therefore ineffective ( Az. 2 AZR 541/09).

Facts and decisions

Benedikt Hopmann , Emmely's lawyer, December 2018

prehistory

The cashier worked in retail since 1977. At first she worked for the GDR retail chain HO , after the fall of the Wall she worked for 15 years in the Kaiser's branch in the Storchenhof in Berlin-Alt-Hohenschönhausen until the time of termination . The suspicion termination was in February 2008 without notice pronounced after 31 years in the employment relationship because the cashier had cashed two lost Leergutbons a total value of 1.30 euro unilaterally, which had been entrusted to her by the store manager until they are collected by the owners.

The cashier, her lawyer Benedikt Hopmann and the United Services Union (ver.di), which granted her legal protection , suspected that the reason for the dismissal was the woman's involvement in retail strikes at the end of 2007. She was then only assigned to late shifts ; the branch manager excluded them from an employee celebration in January 2008. The cashier was initially represented by ver.di legal protection. She later hired her own lawyer because ver.di legal protection had spoken out against public relations work on the case. The head of the trade department at ver.di Berlin-Brandenburg, Erika Ritter, had the impression that Emmely was "used for political purposes". The cashier was accused of having changed her presentation of the facts in the course of the proceedings and incriminating colleagues, which is why the Berlin public prosecutor's office examined investigations into pretending to be a criminal offense , but concluded with no evidence of a criminal offense. In addition to the legal dispute over the dismissal, there were disputes about the content of the job reference . An agreement was only reached on the content of the certificate about two years after the termination.

Decision of the labor court in Berlin

The cashier filed a dismissal protection suit against the termination . The Berlin Labor Court dismissed the lawsuit in August 2008. A termination on suspicion was justified; the relationship of trust is broken. Witnesses had confirmed that she had redeemed the vouchers at the expense of her employer.

Decision of the state labor court Berlin-Brandenburg

The cashier's appeal against this was unsuccessful.

The State Labor Court of Berlin-Brandenburg considered it proven that the plaintiff had redeemed the two empties vouchers found on January 12, 2008 with a value of 48 cents and 82 cents when she went shopping on January 22, 2008. In doing so, at the expense of her employer, she reduced the purchase price she had to pay by 1.30 euros without having been entitled to do so. When asked about this, she not only persistently denied redeeming the two deposit receipts, but also tried several times to incriminate other employees and thus put them in the risk of dismissal without this having proven tenable.

This behavior of the applicant is an important reason for termination within the meaning of § 626 BGB. She was not entitled to redeem the vouchers under any conceivable aspect. The store manager gave her the receipts to wait to see whether customers would answer, otherwise they should be booked as incorrect receipts.

After weighing the interests of the defendant in an immediate termination of employment against the outweighs grandfathering interest of the applicant. A cashier is expected to be absolutely reliable and correct in dealing with the cash register, bookings, money, empties or other receipts; these behavioral norms are an indispensable prerequisite for the activity of a cashier. The defendant must also be able to rely on the fact that the cashiers employed by her, to whom she entrusted money and goods, always behaved correctly in this regard and did not allow irregularities to occur at her expense, even with smaller amounts. As a result, it is also incorrect to assume that property crimes against the employer's property, which only affect property of low value, are more or less tolerable. The irreparable loss of trust of the defendant made it unreasonable for her to continue the employment relationship even until the expiry of the regular notice period, also taking into account the considerable interests of the plaintiff in the continuation of the employment relationship.

The judgment thus continued the case law of the Federal Labor Court of 1984 in the bee sting case , according to which the theft of a thing of little value is also suitable as an important reason for extraordinary termination . According to the reasons for the verdict, it was irrelevant that the cashier was involved with ver.di and was involved in the strike. It could not be proven that the employer reacted or would have reacted differently in comparable cases without union membership. The presumption of innocence does not play a role , since this applies in criminal law , but not in labor law .

The reputation of Kaiser's Tengelmann suffered considerable damage after the judgment was pronounced in the second instance; The company did not make up for the loss of reputation even after months.

Proceedings before the Federal Labor Court

After the decision of the regional labor court, the cashier's lawyer announced that he would appeal to the European Court of Human Rights in Strasbourg if necessary . A few days later he announced that he would appeal to the Federal Constitutional Court on behalf of his client because the judgment cut her off from practicing her profession . This is a violation of Article 12 of the Basic Law ( freedom of occupation ).

On July 28, 2009, the 2nd Senate of the Federal Labor Court admitted the appeal against the judgment of the State Labor Court on the complaint of the plaintiff's non-admission complaint . The reason for the admission because of their fundamental importance was not the low value of the receipts, but the question of whether the procedural behavior of the employee in the dismissal protection process , which took place after receipt of the notice of termination, may be taken into account for the then existence of a reason for termination.

The hearing before the Federal Labor Court took place on June 10, 2010. In these final proceedings, Emmely was right. There is only a "significant breach of duty" and this is not enough for the termination. The non-compliance should have been reacted to with a warning before termination without notice . The trust acquired in 31 years of cooperation can "not be eroded" by a one-time and minor misconduct.

The plaintiff's lawyer spoke of a “great verdict” and stated: “One can only hope that the interests of the employees will be given greater weight in court in the future.” On June 22, 2010, she resumed her job as a cashier in an emperor's office. Tengelmann branch. She received an additional payment for the lost wages, but she had to repay the money she had received from the job center. The apartment, which she had to give up because of unemployment, was not returned to her.

Controversy over the Emmely case

Discussion in the professional community

Up until the second instance judgment, the legal professional public assumed that it was a simple application of the principles of minor dismissals developed by the highest court rulings . The only problem is the reaction of the press. Professor Volker Rieble went one step further in a specialist publication by calling the plaintiff a notorious liar; “Even if a colleague is deliberately denigrated, the offender does not shy away from it. Whoever stands up for this person shows above all that it is not about the cause, but about the campaign . "

In a judgment note, lawyer Bernd Hüpers took the view that, contrary to criminal law, the state labor court had assumed that the cashier had committed theft , embezzlement or fraud at the expense of the supermarket . Furthermore, the court misjudged an exceptional constellation to the federal labor court's bee sting case law because there was neither a repetition nor a risk of imitation. Hüpers saw further mistakes in stressful moments, which were wrongly included in the weighing process of the court. Emmely did not violate the core area of ​​her employment contract activity, and her persistent denial was not allowed to be used against her in the process. The lawyer Jan Schlösser said that redeeming the deposit receipts - even if the matter had happened as presented by the employer - was not a criminal offense against the employer. Only embezzlement at the expense of the receipt owner is conceivable.

The judgment provoked criticism of the prevailing jurisprudence of the labor courts with regard to petty and suspicious dismissals. The deputy chairman of the Berlin-Brandenburg State Labor Court, Achim Klueß, pointed out in a publication the different treatment of property crimes in different branches of the judiciary: The branches of the court responsible for the service contracts of civil servants, soldiers and managers were based on the de minimis limit of the criminal courts and left Terminations without warning for property offenses below € 50 are not permitted. In another specialist article, he applied the criteria of the labor courts to the private use of official resources by judges and public prosecutors in the Nuremberg Higher Regional Court district and contrasted this with the actual outcome of the Nuremberg case: Nobody lost their job there. In a further publication, Klueß dealt with the category of trust, which was also central in the judgment against the Kaiser's cashier, and noted a loss of trust in the labor law.

At the Erfurt forum for labor and social law, Rudolf Buschmann, editor of the journal Arbeit und Recht (AuR), pointed out that no other part of the legal system uses emotional and derogatory terms. It is only in labor courts that the “employee's lack of insight” or “denial” is spoken of, where all other features of the legal system consider it a natural right of the parties to simply dispute the facts presented.

Political controversy

The decision of the Berlin-Brandenburg State Labor Court met with criticism from the public. Wolfgang Thierse , Vice-President of the German Bundestag , called it a barbaric judgment of antisocial quality, which destroy confidence in democracy could. The court could have decided otherwise. It could have taken into account, for example, that the woman did backbreaking work for her company for 31 years, he told the Berliner Zeitung .

The President of the Berlin-Brandenburg Regional Labor Court, Karin Aust-Dodenhoff , described Thierse's statements as intolerable. Defamation of the courts is capable of undermining the population's trust in the judiciary and interferes with the independence of the courts. The Berlin Lawyers' Association demanded Thierses resignation.

Martin Lindner , chairman of the FDP parliamentary group in the Berlin House of Representatives , took up Thierse's choice of words and called his statement barbaric and stupid . On the academic side, Volker Rieble criticized that Thierses criticism missed the underlying case and disregarded the principles of the separation of powers and judicial independence . The politician and former judge at the Federal Supreme Court , Wolfgang Neskovic , said that the judgment was shaped by a ruthless view that completely ignores the existential interests of employees .

The German Trade Union Confederation spoke of a trade unionist being punished and called the day the verdict was announced as a black day for workers .

The sociologist Gisela Notz explained: Unfortunately there are a lot of Emmelys who have experienced something similar. She criticized the lousy working conditions in retail . Harassment mainly affects women because the saleswomen are almost all women. Men only work as branch managers in grocery stores.

The fate of the cashier was also addressed in the sermon on Sunday Septuagesimae 2009 in the Protestant parish of Rielasingen-Worblingen . It said: […] each of us has been caught up in such a small injustice. And that's why our sympathy belongs to the poor saleswoman.

Newspapers, such as the Berliner Morgenpost , received a large number of letters to the editor after reporting the second instance judgment . It said, for example: What was kicked off by this dismissal without notice and the court rulings is impressive: Most people are stunned and also angry that a person has to be permanently branded on suspicion because the laws do not allow any freedom. In a letter to the blog of the Frankfurter Rundschau , a reader wrote: As a cashier with 30 years of professional experience is fired for 1.30 euro on the one hand. Instead, what do you do with the managers and bankers who plunged the entire economy into crisis?

The publicist Henryk M. Broder cited the case in his polemic Critique of Pure Tolerance as an example of severity bordering on mercilessness.

The crime writer Wolfgang Schorlau reported the case, along with other examples, in his novel The Munich Conspiracy and concluded from it: In the summer of 2009 it looked as if the ruling class wanted to test how far it could push it, as if it should in one huge social experiment examining how much injustice society can endure.

In the first half of 2010, all opposition factions in the German Bundestag wanted to introduce bills to regulate protection against dismissal. The left-wing faction's bill stipulated that dismissals in minor cases would only be permitted after a prior warning, while suspected dismissals were generally to be prohibited. The draft of the SPD parliamentary group stipulated that conduct-related dismissals should only be possible after prior warning. The suspected termination should not be shaken. The Bundestag faction Bündnis 90 / Die Grünen wanted to present its draft to the Federal Labor Court after the case had been negotiated.

The Federation of German Employers' Associations , for example, is against a change , pointing to damage amounting to around one billion euros per year in retail. The reason for this were several cases of dismissals due to petty thefts that went through the press in 2009. The Emmely case was the best known of these. The parliamentary group chairman of the CDU parliamentary group in the Bundestag rejected the project because it was a matter of individual legislation. The chairman of the Federal Association of Labor Judges was also skeptical, since individual cases were already being weighed up and a de minimis limit would raise more problems than it would solve. The allegation of the two-tier law is countered by the fact that minor dismissals, as in the Emmely case, can also affect executives and are also an important instrument for separating executives without a so-called “golden handshake”.

Solidarity actions

The path of the dismissed cashier through the legal authorities was accompanied by solidarity actions. Trade unionists and political groups formed the Solidarity with Emmely Committee . There were protests and calls for a boycott of Kaiser's Tengelmann.

An open letter to the CEO of Kaiser's Tengelmann AG announcing the boycott called on him: Come to your senses! Schlecker and Lidl shouldn't be your role models! The first signatories included Axel Troost , Bodo Zeuner , Jürgen Link and Peter Conradi .

The Solidarity Committee submitted a petition to the Petitions Committee of the German Bundestag in order to document the widespread outrage about the judgment against Emmely and the class justice in Germany and to achieve the introduction of a de minimis limit for dismissals. It was rejected because there was already a petition with the same content.

The German hip-hop group Fettes Brot released a song called “Emmely” on their album Teenager vom Mars in September 2015, in which they described Barbara Emme as brave and the Kaiser's Tengelmann group as “Graue Ritter”, who are here as antagonists are represented, designate.

Aftermath

Barbara Emme continued to work as a cashier after the branch was closed in another one in Berlin-Hohenschönhausen, near her residential area. She was asked by customers for autographs, some insisted on redeeming deposit receipts with her. In 2011 and 2012 she published books with co-authors about her experiences. She participated in international trade union congresses. In 2011 she flew to Venezuela for the World Conference on Women . In 2014 she was elected to the works council.

Lawyers assessed the consequences of the legal dispute differently six years after Barbara Emme's dismissal without notice. On the one hand, it was pointed out that there were no more minor layoffs due to one or two euros, on the other hand labor courts had confirmed layoffs due to minor thefts.

A ver.di lawyer pointed out that employers now kept parallel files in addition to the official personnel file in which they kept warnings that should have been removed from the personnel file. Another labor lawyer reported that warnings were only removed from the personnel file after complaints from employees. In addition, there are more frequent warnings to prove that the relationship of trust with employees has been disrupted.

Barbara Emme died of heart failure on March 16, 2015 at the age of 57.

literature

  • Barbara Emme, Jörg Nowak and Gregor Zattler: Strike. Terminated. Fought. Won: The experience of the “Emmely” campaign . Ag Spak 2011, ISBN 978-3-940865-27-4 .
  • Barbara Emme, Benedikt Hopmann, Reinhold Niemerg: "Emmely" and the consequences: over small "victories" thanks to great solidarity . VSA, Hamburg 2012, ISBN 978-3-89965-516-2 .
  • Michael Fuhlrott: The termination based on behavior after "Emmely" - Everything stays the same In: ArbR Aktuell 2010, pp. 541-543.
  • Bernd Hüpers: Unlawful redemption of deposit receipts - an important reason for extraordinary termination? In: JURA 2010, pp. 52–56.
  • Achim Klueß: Minor property offenses - no compulsory dismissal . In: NZA 2009, p. 337 ff.
  • Volker Rieble : Barbara Emme: A lesson about dealing with the judiciary! In: NJW 2009, pp. 2101-2105.
  • Robert von Steinau-Steinrück, Katharina Ziegler: Labor law “materiality threshold” for property crimes? . In: NJW-Spezial 2009, pp. 274–275.
  • Markus Stoffels: The BAG's “Emmely” decision - just a clarification of misunderstandings? , NJW 03/2011, 118.
  • Werner Walk and Nils Wiese: Whoever steals, flies - or maybe not? The problem of minor layoffs in current case law . In: JSE 1/2011, p. 26 ff.
  • Uwe Wesel : History of the law in Europe. From the Greeks to the Treaty of Lisbon , pp. 700–703, Munich 2010, ISBN 978-3-406-60388-4 .

Web links

Individual evidence

  1. ↑ David Ensikat: The woman who was "Emmely". In: Der Tagesspiegel . June 19, 2015, accessed May 2, 2016 .
  2. ↑ Federal Labor Court, judgment of June 10, 2010, AZ: 2 AZR 541/09 - Termination without notice - Balancing of interests - Warning - "Emmely" case
  3. ↑ Federal Labor Court collects petty dismissal . In: Spiegel Online from June 10, 2010.
  4. ↑ Thomas Sigmund: The supermarket can fire the cashier without notice . In: Handelsblatt online from February 26, 2009.
  5. ^ Non-terminable company In: Der Tagesspiegel of July 25, 2009.
  6. ↑ Esther Wiemann: "Emmely" complains to the constitutional court . In: Spiegel Online from March 25, 2009.
  7. ↑ Lost job after 30 years due to empties receipt . ( Memento from February 27, 2009 in the Internet Archive ) In: Netzeitung from February 24, 2009.
  8. ↑ Dispute over 1.30 euros - cashier dismissed without notice . In: Der Tagesspiegel online from June 20, 2008.
  9. ^ Non-terminable company In: Der Tagesspiegel of July 25, 2009.
  10. ↑ Review: Termination because of 1.30 euros - Are the victim's statements credible? . ( Memento from July 25, 2009 in the Internet Archive ) In: Das Erste (MDR) on July 21, 2009.
  11. ↑ a b c d Volker Rieble: Barbara Emme: A lesson about dealing with the judiciary! In: NJW 2009, 2101.
  12. ↑ Emmely back in court soon? . In: Neues Deutschland from July 24, 2009.
  13. ↑ Emmely doesn't have to fear charges . In: Tagesspiegel from October 15, 2009.
  14. ↑ Laura Himmelreich : The cashier receives a job reference after 645 days . Spiegel-Online from December 11, 2009.
  15. ^ Judgment of the ArbG Berlin 2nd Chamber of August 21, 2008, file number: 2 Ca 3632/08
  16. ^ Cancellation by cashier due to deposit receipts . In: Der Tagesspiegel online from August 21, 2008.
  17. ↑ Judgment of the LArbG Berlin-Brandenburg of February 24, 2009 - AZ: 7 Sa 2017/08 -, para . 27 ff.
  18. ↑ Judgment of the LArbG Berlin-Brandenburg of February 24, 2009 - AZ: 7 Sa 2017/08 -, para . 59.
  19. ↑ Judgment of the LArbG Berlin-Brandenburg of February 24, 2009 - AZ: 7 Sa 2017/08 -, para . 44.
  20. ↑ Judgment of the LArbG Berlin-Brandenburg of February 24, 2009 - AZ: 7 Sa 2017/08 -, para . 57 ff.
  21. ↑ Heading of the Federal Labor Court in the bee sting case of May 17, 1984, file number 2 AZR 3/83; see. on the continuation of the case law of the BAG: Volker Rieble, Barbara Emme: A lesson about dealing with the judiciary! In: NJW 2009, 2101 (2102).
  22. ↑ Boris Hedde: Kaiser's image lastingly weakened. In: Wirtschaftswoche online from June 29, 2009.
  23. ↑ 1.30 euros embezzled: cashier loses job . In: Hamburger Abendblatt online from February 25, 2009.
  24. ↑ Cashier goes before the constitutional court . In: Hamburger Abendblatt online from February 28, 2009.
  25. ↑ BAG, decision of July 28, 2009 - AZ: 3 AZN 224/09 -, para. 4th
  26. ↑ Is labor law too picky? . Taz.de from March 23, 2010.
  27. ^ "Emmely" wins before the Federal Labor Court . In: Focus from June 10, 2010.
  28. ↑ Jost Müller-Neuhof: Emmely in luck In: Der Tagesspiegel from June 10, 2010
  29. ↑ Assessment of the BAG judgment by the “Solidarity with Emmely” committee on Labournet.de.
  30. ^ A law professor calls Emmely a "notorious liar" . In: Der Tagesspiegel from July 16, 2009.
  31. ↑ Bernd Hüpers, Unlawful redemption of deposit receipts - an important reason for extraordinary termination? JURA 2010, pp. 52–56
  32. ↑ Dr. Jan Schlösser: The criminal law side of the "Emmely" case . In: Highest judicial jurisprudence in criminal law, pp. 509–515, issue 11/2009.
  33. ^ Achim Klueß: Minor property offenses - No compulsory dismissal . In: NZA 2009, p. 337 ff.
  34. ↑ Achim Klueß: Minor offenses: The Nuremberg justice scandal as reflected in the labor court case law . In: AuR 2010, issue No. 2, pp. 57–59.
  35. ↑ Achim Klueß: minor offenses: loss of confidence in / the jurisprudence . In: AuR 2010, Issue 5, pp. 192–196.
  36. ^ Johannes Matzke: Erfurt forum for labor and social law . In: AuR 2010, issue 5, p. 213 f.
  37. ^ Regine Zylka: Emmely case outraged Thierse: "Barbaric judgment". In: Berliner Zeitung . February 26, 2009, accessed June 15, 2015 .
  38. ^ Press release by the President of the Berlin-Brandenburg State Labor Court on February 26, 2009.
  39. ↑ Axel Hildebrand: "The reaction was not calculated" . In: Der Spiegel from February 27, 2009.
  40. ^ The President of the Court refuses to criticize Thierse . In: Die Welt online from February 26, 2009.
  41. ↑ Right of termination due to 1.30 euros . ( Memento from February 27, 2009 in the Internet Archive ) In: Rheinische Post online from February 24, 2009.
  42. ↑ Till Below: "There are chicanes in many supermarkets" . In: the daily newspaper online from August 18, 2008.
  43. ↑ Page no longer available , search in web archives: Sermon by Pastor Thomas Hilsberg, Evangelical Church Congregation Rielasingen-Worblingen (PDF file)@1@ 2Template: Toter Link / www.johannesgemeinde-rielasingen.de
  44. ↑ "Here grace would have been far more appropriate before right" . In: Berliner Morgenpost online from March 3, 2009.
  45. ↑ Steal a euro and you will be cracked. Steal ten million ... In: Bronski - the FR blog from February 25, 2009.
  46. ↑ Henryk M. Broder: We tolerate ourselves to death . In: Critique of Pure Tolerance . Foreword to the paperback edition, second edition of the paperback edition. Munich 2009, p. 18, ISBN 978-3-570-55089-2 .
  47. ↑ Wolfgang Schorlau: The Munich plot , p. 22. Cologne 2009, ISBN 978-3-462-04132-3 .
  48. ↑ Left parliamentary group: Draft of a law prohibiting dismissal on suspicion and extending the conditions for dismissal in the case of minor offenses (PDF file; 102 kB)
  49. ↑ SPD parliamentary group: Draft of a law to expand protection against dismissal for employees (protection against dismissal due to insignificant economic damage) (PDF file)
  50. ↑ SPD plans a ban on dismissal . In: Süddeutsche Zeitung of December 21, 2009
  51. ↑ SPD wants to prohibit dismissal because of petty theft . In: Spiegel-Online from December 21, 2009.
  52. ^ Peter Rölz: Stay away from company property! In: Manager Magazin issue 3/2010 from April 15, 2010.
  53. ↑ Solidarity campaigns at LabourNet.de
  54. ↑ Termination effective because of 1.30 euros . In: stern online from February 24, 2009.
  55. ↑ Open letter to Bernd Ahlers, CEO of Kaiser's Tengelmann AG (PDF file)
  56. ↑ Ina Beyer: Who does labor law benefit? In: Neues Deutschland online from June 26, 2009.
  57. ↑ a b Cashier Emmely is dead , verdi.de, March 26, 2015
  58. ↑ a b taz, 28./29. March 2015, p. 21.
  59. ↑ Alexander Demling: Terminated because of deposit receipts: What became of Emmely, the cashier? , Spiegel Online from August 28, 2014, accessed on August 30, 2014.
  60. ↑ Peter Nowak: Emmely is dead , Taz , March 26, 2015.
  61. ^ Obituary for Barbara Emme (born 1958) The woman who was "Emmely" , Der Tagesspiegel, June 19, 2015