Secret conversation recording as retrospective grounds for termination without notice
(Higher Labor Court Hamburg, decision dated July 22, 2015 – 6 Sa 77/14)

If at the point of receiving notification of extraordinary termination there are other objective reasons for termination, which do not come to the attention of the employer until after the notice of termination, the employer may base the extraordinary termination on such retrospective grounds for dismissal.

The plaintiff, date of birth 04.02.1966, had been in the employment of the defending employer as a “Sales/Project Management Employee” since October 04, 1995. The defendant did not have a Works Council in place. The defendant terminated the employment relationship between the parties without notice on March 13, 2014, as opposed to duly, which would have been as of September 30, 2014, on the grounds of poor performance on the part of the plaintiff as a result of failure to make use of her full potential. After having lodged in due time an appeal against the judgment of the court of first instance, the Labor Court of Hamburg, which granted an unfair termination claim, it came to the attention of the defendant in December 2014 that the plaintiff had secretly recorded a staff appraisal held with the defendant on November 20, 2013 on her cell phone. The defendant introduced this issue into the appeal proceedings as an additional reason for termination as a mean of justification for her termination.

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