The dismissal of an employee due to poor performance can be lawful. This is demonstrated by a judgment of the Cologne Regional Labor Court on May 3, 2022 (Ref.: 4 Sa 548/21).
According to labor law, the employer can pronounce a behavior-related dismissal if the employee violates their contractually agreed duties. This includes the employee performing the contractually agreed services. If the owed work performance is not provided over a longer period, this can justify the dismissal by the employer after a prior warning, explains the law firm MTR Legal Rechtsanwälte, which focuses its advisory services on labor law.
For the dismissal of a so-called ‘low performer’ to be effective, the employer must demonstrate that the affected employee is performing significantly worse than comparable colleagues.
In the proceedings before the LAG Cologne, the employer succeeded. The employer dismissed an order picker who had been employed by the company since 2011. It had been agreed within the framework of a company agreement that the basic performance (100 percent) corresponds to the normal performance and is remunerated with the basic wage. The employee was unable to achieve this basic performance over a long period. After discussions with the employee about his performance, a warning was issued in January 2020 for deliberately withholding his available work capacity. In December 2019, he had only reached just under 73 percent of the basic performance, while comparable employees achieved around 116 percent. After another warning, the employer issued the dismissal in May 2020.
The employee’s wrongful termination lawsuit was unsuccessful. The employer demonstrated in the process that the plaintiff’s performance lagged significantly behind that of 150 other pickers. In comparison, his performance fell by more than a third. Thus, the employer fulfilled their burden of presentation, according to the LAG Cologne. It was evident that the employee significantly underperformed the average performance. This is the case when the average performance is undercut by more than a third in the long term. Then the employee must state reasons for the performance and demonstrate that he still fully utilized his personal performance capability. This was not the case here, making the dismissal effective, according to the court.
MTR Legal Rechtsanwälte advises on all questions of labor law.
