Posts Tagged ‘Insults’

The verdict against the Bäckereimobberin

26. Januar 2010

Justice.

After the chief had denounced the Mobberin, they went to court and tried to legitimize their anti-social behavior can also legally. The Land Schleswig-Holstein has rejected an appeal by the applicant and confirmed the sentence of Arbeistgericht Munster, so the dismissal against the Mobberin.

The verdict 3 Sa 224/09:

„In the case of pp … is the 3rd Appeal of the Land Schleswig-Holstein to the hearing on 21.10.2009 by the Vice President of the Regional Labor Court … as chairman and honorary judges d. … d. volunteer as assessors and judges as an associate judge ruled … right:

The appeal by the applicant against the decision of the Labor Neumünster from 19.03.2009 — 2 Ca 84 D/09 – Is rejected at their expense. The revision will not be allowed.

LEGAL REMEDY: An appeal against this verdict is not given, but otherwise is referred to § 72 a ArbGG.

FACTS: The parties disagree about the effectiveness of two case of summary dismissal of the complaint inadequate, partly abusive handling against Members.

The applicant is 31 years old, married, and since 15 April 2001 when the defendant was operating as a bakery Fachverkäuferin. The defendant has more than 10 employees. The applicant received last 1.900,00 Euro gross per month. The applicant has worked in the branch in H.-U. . Head of this branch is Ms. L ….

On 01.09.2008 … A woman there started their training. Were also in this branch, among other things also the sellers and L … M … worked, Ms. L … long time, Mrs. M … first time on 11.11.2008. On 03 November 2008 searched the defendant, the sales manager Ms K … and operations consultant, Mr L … on a branch. These include the student was asked a woman … how she liked the store. This subsequently reported that they zurechtkäme with all except the applicant. The latter had not disputed – in which Tone However – repeatedly criticized in front of customers.

In response, the applicant was still at 03 November 2008 prompted Mrs A … reasonable to treat not and critique prior customers.

In the following week, the store manager Ms L … Mrs. K and Mr. L reported … … that was the applicant’s conduct towards Ms A did not improve … but even worse. Now the applicant has been scheduled for 11 November 2008 to ei-nem interview asking the central office. The conversation, which was attended by the two parties and Ms K …, took place in the period between 10.00 and 11.00 clock. The applicant was, among other things instructed to maintain, compared to a woman … a reasonable tone, and in particular To refrain from insults and threats.

She was told that this was now her last chance. They should lead the students A … a meeting to defuse tension, and even with the new clerk, Ms. M … friendly and reasonable deal. The applicant then drove back to the store H … U …. Then there were statements on their part, are open to debate and have led to this dismissal.

By letter dated 13 November 2008 (Appendix K 2; passed Bl 8 d. A.), the applicant on the same day, the defendant has an employment relationship with the applicant’s extraordinary, alternative, properly terminated. On 20 November 2008 sought to be discontinued, the applicant branch in H-U … on …. She met the student A … and spoke to her. The content of the statements made to Mrs A … is in dispute between the parties. The same applies to a statement by the applicant to present a Cleaner is said to have made about a woman ….

On this occasion, the defendant expressed dated 28 November 2008, a new extraordinary notice. This termination is the applicant on 01 December 2008 the latest. Against both dismissal, the applicant has brought an action in time. They consider that it has no Contractual obligations violated, at most slightly tomboyish behavior, the Labor Court regarding the allegations of the defendant that the applicant had insulted fellow-tion and threatened, evidence collected through interrogation of witnesses A and M … …. It has subsequently dismissed the action because it has considered in connection with the utterance of the first extraordinary dismissal, 13.11.2008 allegations as proven. With regard to the details of TATB tand-referenced applications and the grounds of the first-instance ruling of 19.03.2009.

Insults and threats

Against this ruling, notified the applicant on 20.05.2009 it has brought on 17.06.2009 calling, which was established on 20.07.2009.

The applicant repeats and deepens their submissions at first instance, essentially. She continues to deny the allegations and does not consider the witnesses credible. You have insulted or threatened any of her colleagues. Also it is not been warned-off. The applicant sought to reverse the verdict of the Labor Neumünster from 19.03.2009, notified on 20.5.2009 (file number 2 Ca 84 D/09) and:

1. determine that the employment explained by the by the defendants, dismissed without notice from 13.11.2008 has not been resolved,

2. been noted that the employment by the declared by the defendant in the alternative, dismissal with notice is not resolved, 13.11.2008,

3. been noted that the employment of the defendant explained by the summary dismissal of 28.11.2008 is not resolved.

The defendant contends that the Appeal dismissed.

The defendant contested the verdict, both in fact and legal point of view to be correct. Even the extraordinary termination was justified, 13.11.2008. As evidenced by the outcome of the Evidence was the tone used by the applicant have been inappropriate. On 10 November 2008 around 1200 clock had threatened the applicant, the A student …. They have in the property unit L branch manager in an offensive way … … A woman said: „If you love me again anscheißt the boss, I go to your neck!“ (Proof: L …).

Once the applicant on 11 Was November 2008 after the staff meeting in the branch returned versa, they have also the wife M … „Finger„Show and said:“ Who anscheißt to the head … I’m flat! „(Proof: M … L … L …).

On 20 6November 2008 was already terminated the applicant again went to the store and others have to Mrs A … said: „Because of you little bitchYou Bitch, I have been terminated. You are such a Mr Pig. You are the biggest bitch in the world! I hope that you will not survive the probationary period, „By transcending the applicant had to present cleaning contractor Sch … said:“ Because the bitch back there, I have been terminated. „The court has collected evidence on the behavior and statements of the applicant on 10.11.2008 and on 11.11.2009 by questioning witnesses … L, L and M … …. With regard to the evidence issues and the outcome of the inquiry is made to the meeting minutes of 21 Reference is made in October 2009. Regarding the other arguments of the parties to put forward the contents of pleadings exchanged and the annexes thereto, and the protocols referenced. Law I.

The appeal is allowed. It is form and has been brought in time and within the time limit appeal, also founded.

Second, the appeal is not justified. With detailed convincing reasons the industrial tribunal dismissed the dismissal in court, especially designed to ensure that after the outcome of the inquiry the applicant’s remarks to Mrs M … a intolerable threat which, taken in light of the talks held with the applicant’s first and conduct an immediate repetition of the relevant trade and flashings require the defendant.

This is followed by the appellate court in the result and in much of the ground. To avoid unnecessary repetition, reference is made to the detailed reasons for the decision under appeal ruling. Merely complementary and closely to the new presentation and the outcome of the inquiry conducted zweitins-tanzlich is stated as follows:

1. According § 626 Abs 1 BGB is an employment for cause without notice will be canceled if there are facts upon which the termination, taking into account all the circumstances of individual case-les, and weighing the interests of both parties to continue the Ver-tragsverhältnisses not be expected until the expiry of the notice can.

The weakest link

Regarding the existence of a termination reason is basically the Employers and the burden of proof EVIDENCE.

a) Gross insults from fellow are in themselves capable of justifying a summary dismissal to. What is to be classified among them, to be decided after considering the circumstances of the individual case. Is of importance, inter alia, the occupational or industry-tone and the interview situation (Schaub, labor law handbook, § 125 Rdz. 77), with further references.

b) Even fights Operating principle justify the extraordinary termination. The employer has to protect all workers in its operations against physical attacks.

c) Because of the incumbent duty of care to an employer to his employees, he is obliged to Maintaining the peace operation implement appropriate measures to ensure the orderly cohabitation of Betriebsgemein-nity to provide. Thus, a sustained disruption of the orderly to the company can justify sammenlebens Community dismissal if the production process or the orderly cohabitation otherwise be affected (Schaub, § 130 Rdz. 35 mw) N..

2. Against this legal backdrop, the immediate dismissal of the defendant is justified, 13.11.2008. The applicant’s conduct in relation to their colleagues was no longer tenable and justified in view of previous discussions held with her, even taking into account the long-proper operating condition of the applicant Extraordinary termination.

a) After the conclusion of the appellate sometimes repeated, sometimes comple-mentary inquiry is conducted to the satisfaction of the appellate court found that the applicant compared to the trainees on 10.11.2008 … A colleague at work and in front of Mrs. M … on 11.11.2008, not only in has expressed a burschiko sen-kind, but both intimidated in an unacceptable way, sometimes even threatening, and thus a fruitful collaboration has disturbed sustainably. aa) has L … For example, the witness said about the conduct of the applicant on 10.11.2008 off that trainees A … „has gone to his neck“ and this has since accused-in, she was guilty, that she again Chief must. The witness has demonstrated how the applicant has been physically behave there. After it has set itself in this statement immediately before a woman … and her hand, at least very close to the neck of the woman … a move when they did not have the neck be-comes.

Such behavior is a threat of a work colleague who is no justification, and in this case was by no behavior of a student … even partially provoked. The Board has no doubts about the credibility of the witness L … in connection with this statement. The witness, who had done initially difficult, especially in relation to the incident of 11.11.2008, to restore metaphorically about a year ago in the event sequences and report its connected to has the Ge-schehen almost effervescent, 10.11.2008 “ in one piece „described. The witness has stated that and how she screamed at the gestures of the applicant again: „A …!“. Your statement is in the opinion of the chamber in every way worthy of faith. It was evident in the facial expressions of the witness, and how shocked she was that element over the applicant’s conduct towards the students in the Mon-A …. Also in connection with the description of the reaction of apprentices A … – at least 5 minutes crying on the toilet – has the witness credibly explained the effect of the conduct of the applicant. Her horror and her own concern about the students of preoccupation over the mirror-ing at the witness L … even during her testimony in the facial expression as -the.

The cry

bb) However, the witness has L … without any evidence of any un-credibility of the defendant’s notice set out the facts also confirmed. She testified that the applicant has applied and with a raised fin-ger said on the witness M … „Who me anscheißt the boss, which I do flat.“ The witnesses had no contact during the inquiry, because the witnesses gin L … after testifying at the request of the court as a precaution in the meeting held on has. The witness has confirmed the L … L … statement of the witness, even in

seemingly incongruous detail. The witness has expressed ge … L-spent, that the applicant has intimidated the new co-worker on her first day out of the blue and could not calm down. It has also confirmed the gesture, which the applicant to Ms M … with the hand / finger made, and demonstrated. She has left open whether there has been a question of the „stink-finger“, which was the favorite character of the applicant, or to the index finger. This is for the Appellate Division but not entscheidungser-considerably. The Appeals Chamber then there are no doubts that it is ge for the conduct of the applicant no longer just a tomboy-acting form of expression has, it has rather the new co-worker M intimidated … so that the subsequent course of the workday and appeared questionable the cavity and L … L … felt responsible to advise the witness of M …, as now proposed would be received and to encourage them to try to hold out at least a few hours of work. By the applicant of the day laid dealing towards its fellow workers is unacceptable. It destroys the peace operation and makes a fruitful cooperation impossible.

cc) This has finally confirmed the testimony of the witness M …. This they claim has felt very uncomfortable, and perceived the situation as extremely unpleasant. She has the attitude of the applicant as aggressive towards her one-arranged and was perplexed, why was she of addressee of such statements. It is also within the scope of the inquiry made clear that was conducted almost a year after the incident in the appeal hearing. The witness M … has confirmed that she was confused and totally bewildered, as the further working day on which they now faced the very aggressive towards her aufgetre Tenen-applicant would be working alone weiterverlaufen. She also testified that she had agreed not to 15.00 clock, as with the cavity L and L … …, endured „. This is done so after testifying, both to enable my fellow L and L … … the closing time and to be expected of an-other hand, the applicant not having to serve in the whole working alone and without support in the store. Even the testimony of the witness M …

Given this lack of capacity for insight and timely objected to handle multiple repetitions of the style of an utterance extraor-tion termination was justified in this case also taking into account the long tenure of the applicant. 3. Accordingly, the unfair dismissal claim was unfounded. The extraor-che termination of the defendant, 13.11.2008 has terminated the employment relationship effective without notice. Dismissed the action was dismissed, therefore, quite rightly, that the Beru-tion was. The decision on costs follows from § 97 ZPO. The requirements of § 72 para 2 ArbGG are not available, so that the revision was not allowed. In this case is solely an individual decision. Signed: Signed: … .. Signed …

a) After the conclusion of the appellate sometimes repeated, sometimes performed in addition evidence is established to the satisfaction of the appellate court that the applicant compared to the trainees on 10.11.2008 … A colleague at work and in front of Mrs. M on 11.11.2008 … not only in a tomboyish type has expressed, but both in a unsustainable way intimidated, Some even threatening, and thus a fruitful collaboration has permanently damaged.

The Show of one Euro by Hartz IV

aa) has L … For example, the witness testified about the conduct of the applicant on 10.11.2008, that the A student … „has gone to his neck“ and this has since accused-in, she was guilty that they had to head back . The witness has demonstrated how the applicant has been physically behave there. After it has set itself in this statement immediately before a woman … and her hand, at least very close to the neck of the woman … a move when it has not even touched on the neck.

Such behavior is a threat of a work colleague who is no justification, and in this case was by no behavior of a student … even partially provoked. The Board has no doubts about the credibility of the witness L … in connection with this statement. The witness, who had done initially difficult, especially in relation to the incident of 11.11.2008, to restore metaphorically about a year ago in the event sequences and report its connected to has the Ge-schehen almost effervescent, 10.11.2008 “ in one piece „described.

The witness has stated that and how she screamed at the gestures of the applicant again: „A …!“. Your statement is in the opinion of the chamber in every way worthy of faith. It was evident in the facial expressions of the witness, and how shocked she was that element over the applicant’s conduct towards the students in the Mon-A …. Also in connection with the description of the reaction of apprentices A … – at least 5 minutes crying on the toilet – has the witness credibly explained the effect of the conduct of the applicant. Her horror and her own concern about the students of preoccupation over the mirror-ing again at the witness L … even during her testimony in the face.

The Board has no evidence to doubt the correctness of this statement. Even with regard to the incident of 11.11.2008 the witness L has confirmed … that the applicant is furious after the talks at the headquarters in the branch in H … U … has appeared and said, gesturing to the witness, M … with the hand or fist „Who wants to turn on to the head that I’m dull.“ L … The witness has testified in this context, it was uncomfortable and a little threatened ge-feel, the witness that M is … was speechless.

She has also testified that she has tried to the applicant, which she described as a calm-tempered, what could not. She has shown how helpless the Witness M was … in terms of their subsequent work behavior that day. Collectively have the cavity L … L … M … and then thought, could be how to ensure that women and women’s L … L … could make their closing time and could remain nevertheless the witness M … alone with the applicant at the office and work. The Appeals Chamber has already become clear from this statement that the conduct of the applicant’s ge-ordered to pay Mrs M … compared to all three witnesses interrogated the issue of whether the witness on 11.11.2008 its M … Work at all still would be able to provide and how it could not afford the protection of other colleagues, on this ten-ers working assistance.

The Chamber has also so far no evidence for a possible lack of credibility of the witness L …. Their testimony was consistent, it was visibly affected. It was still going through their concern clearly, 11.11.2008, as the witness M … with the applicant after this incident, this would still be at the beginning of its first working day, more work can. is credible in all respects.

bb) L … But the witness has confirmed without any evidence of any lack of credibility of the defendant’s notice set out the facts as well. She testified that the applicant has applied and with a raised fin-ger said on the witness M … „Who me anscheißt the boss, which I do flat.“ The witnesses were detained as a precaution during the inquiry, no contact, because the witnesses gin L … after testifying at the request of the court in the meeting room has.

The witness has confirmed the L … L … statement of the witness, even in seemingly incongruous detail. The witness has expressed ge … L-spent, that the applicant has intimidated the new co-worker on her first day out of the blue and could not calm down. It has also confirmed the gesture, which the applicant to Ms M … with the hand / finger made, and demonstrated. She has left open whether it is the „Finger„That the Favorite character of the applicant have had, or has been concerned about his finger. This is for the Appeals Chamber as well irrelevant.

The Appeals Chamber then there are no doubts that these were for the conduct of the applicant no longer merely a jovial expression, it is rather the new co-worker M intimidated … so that the subsequent course of the workday was also queried, and the cavity L … L … and felt the responsibility to consult with the witness of M …, as now proposed would be received and to encourage them to try to hold out at least a few hours of work. By the applicant of the day laid dealing towards its fellow workers is unacceptable. It destroys the peace operation and makes a fruitful cooperation impossible.

cc) This has finally confirmed the testimony of the witness M …. This they claim has felt very uncomfortable, and perceived the situation as extremely unpleasant. She has the attitude of the applicant as aggressive towards her one-arranged and was perplexed, why was she of addressee of such statements. It is also within the scope of the inquiry made clear that was conducted almost a year after the incident in the appeal hearing. The witness M … has confirmed that she was confused and totally bewildered, as the further work, in which she compared with her highly aggressive encountered applicant had to work alone, would weiterverlaufen. She also testified that she had agreed not to 15.00 clock, as with the cavity L and L … …, endured „.

This is done so after testifying, both to enable my fellow L and L … … the closing time and to be expected of an-other hand, the applicant not having to serve in the whole working alone and without support in the store. Even the testimony of the witness M …

To the satisfaction of the chamber is clear that the applicant has intimidated them gratuitously, and in respect of sustainable, legitimate conflicts brought their subsequent work behavior. For the Appeals Chamber established that the applicant unbridled aggressive towards her new colleague at work – the Weakest Link in their current work environment – and the working atmosphere has been poisoned destroyed on 11.11.2008 by their behavior.

b) This behavior has punished the defendant for the law with the phrase of a termination without notice. The plaintiff was unreasonable in view of their order-gangstons already at 03.11. 2008 and immediately before the incident on the morning of 11.11.2008 has been discussed. It has been explicitly requested on 11.11.2008 to refrain from insults and threats from colleagues about. She has been advised that this now is their last chance.

c) If the plaintiffs‘ representatives have denied the appeal hearing that the applicant has been said that this was now their last chance, this is irrelevant, and bring on-time. Page 3 evidenced by the facts were not disputed until now, this content of the conversation. An event request for correction is not available. Also in support of its appeal in this regard was the appellant did not contest the defendant’s gen. Insofar as the plaintiffs‘ representatives to its intended application-tion on page 2 of its first instance by pleading 16.02.2009, last paragraph, refers and seeks to derive therefrom a lecture on his part, the statement „this is their last chance“ was not pleased that contains such a statement pre – bring even rudimentary.

Prècaire

The sentence: „The applicant has seen some 30 minute conversation as a nice, pleasant conversation criticism,“ contains no disputable substantiated deny the statement of the defendant: that is now their last chance. “

d) This statement by the defendant is clearly a warning in the sense of labor They could be understood by the applicant only as a threat of labor law consequences. It has been understood as a warning by the applicant. That said, the applicant, according to the witness, M … even on 11.11.2008 at her.

e) In view of the fact that the applicant on the same day by return mail immediately following this warning call her repeatedly disputed behavior and her new co-worker aggressively intimidated in a non-excusable manner as shall ensure that she could not continue until the end of ges-working days, was the verdict of the extraor-ISSUE’s dismissal justified, 13.11.2008. The defendant, it was unreasonable to continue the contract only until the expiry of the notice. The applicant was able to act together even after the warning did not talk, although her employer had made clear to her that her behavior is challenged and will continue to be tolerated any longer. However, it has not taken this to heart.

On the contrary, she has complained of this behavior immediately repeated again and thus the first working day of their new colleague-tion made unbearable. The applicant has agreed with its unseemly tone and style to transition to the trainees and new staff A … M … also always turned to the weakest links in the environment of their colleagues. This is be-particularly reprehensible, because these employees were the most vulnerable. Such conduct by the defendant had to stop in order to ensure industrial peace and to live as deihliches coexistence. The defendant was also the continuation of employment not be expected until the end of the ordinary period of notice. It is for the chamber, given the sustainable conduct of the applicant does not begin to be seen to go out factual background against which it would be that in spite of their behavior on 11.11.2008 at notice during a running 2 ½-month termination would be in a position, self-restraint and to respect their fellow leginnen to behave appropriately. This is all the more so as the applicant on 11.11.2008 has worked for three hours with her co-worker improperly attacked M … without mitigating the effects of their behavior. Nothing could nähergelegen than to apologize during this time at work colleague, in an attempt to take the focus from the effect of their aggressive utterance.

Deshlab This ruling is important because it makes clear that supervisors do not have the right to offend people, yelling with antisocial and slandering tone too. Furthermore, it makes clear that an employer is EVIDENCE, and prove what was easy in the case of trainees, but in other processes is not the case.

The claim that E. had stolen, and therefore always requires the proof, so the police investigation. A circumstance of vierlerorts wisely will work judges ignored and thus the labor moves into the light of incompetence. That is why Labor has Mündter the land Schleswig-Holstein and the head of the Mobberin causes an important decision. The future will show whether the rule of law prevails in this country against tyranny and kindness judgments.

Source: http://www.sit.de/lagsh/ehome.nsf/1BD644247EA0EFA6C125766C0045AF7E/ $ file/U_3Sa224-09_21-10-2009.pdf

Chief Announces Mobberin

22. Januar 2010

Normally, employees are being harassed, bullied, and then terminated, whether they be deposit tokens, ravioli, or the leftovers from the famous hamburger. Judges too often go to such cases, blue-eyed, without being aware that is the fiduciary duty of the operator. The IHT has published one intressanter and important items with sample sentence. (1)

„Lawyers always strict comparison to what it would be if someone as Private would make a guest at another private citizen something, we should recognize the wrongness. Really? Courtesy must be asked, of course. But which one would deny host one chewed hamburger, a cell phone charging or cardboard from the garbage? Quite apart from the fact that many bosses are fleeting deer, constantly on the move and always much more important things in my head as a small concerns of employees.

Often, companies only have to look carefully or ask colleagues and views would find proper grounds for termination. The Land Schleswig Holstein has certainly recently, a company like peace-securable case: Who offended colleagues and perhaps even attacked, the company must jump extraordinarily termination. Only because the boss has a duty of care, which requires that he insults and harassment from other employees protect their colleagues. „(1)

The verdict 3 Sa 224/09, 2 Approximately 84 D/09 ArbG Munster meant that the bakery shop assistant for several Insults of students could be terminated without notice. The court thus confirmed the fact that a chief caring isWhen a Mobberin immediately announced. The verdict is welcome, and protects the victims against bullies.

1)http://blog.handelsblatt.com/management/tag/mobbing/