Contract & Property Law, Employment Law

Delegations and unjustified dismissal despite drink drving

An interesting summary here on company delegations in Germany. It is of course much more complex than New Zealand, where the signatories usually confirm their respective delegations when signing an agreement.

And this is an interesting, and rather concerning, case where a German Regional Court held the dismissal of a truck driver to be unjustified.

The driver was caught drunk driving and dismissed for serious misconduct. The Court, on appeal, held that the driver was suffering from an alocohol related sickness and hence was not responsible for his actions. The employer could only
terminate the employment relationship if the driver was not able to permanently fulfill his duties under the employment agreement. A one-off incident was not sufficient, especially when the employee was prepared to undergo treatment. Even if one would consider the employee to be responsible, a warning would have been sufficient.  The Court ordered reinstatement.

This judgment will be of concern for most employers in Germany. It seems to completely ignore that employees also have responsibilties towards their employers. An employee who is so sick that he cant help himself but drive under the influence cannot be a at work. If the employer has no knowledge about his sickness, its the obligation of the employee to inform the employer so that safeguards can be put into place. Or suspend the employee until he has undergone treatment and is medically fit to work again.

If the judgment means that the employee is still allowed to work (drive) while undergoing treatment, I wonder how another court would consider the employers’ liability if the same employee causes an accident while drunk, causing significant damage, maybe death. Then what? Insurances usually decline cover in cases of DUI, so the employee would not have cover.  And the employers PI insurance? Would they cover the employer given that the employer knew about the employee’s  sickness and let him drive regardless? Is the judgment ordering reinstatement sufficient excuse? I think that the employer is at risk here, not only losing his insurance cover in such a case, but also suffering reputational damage. The best course of  action is probably to suspend the employee on full pay till treatment is concluded and very carefully assess the medical prognosis. Even if that is positive, I would recommend subjecting the employee to regular drug tests after and immediately dismiss if any test comes back positive.

This would be an expensive and frustrating exercise for the employer. But its a frustrating, expensive judgment too and could become even more expensive.