Judgment of the LAG Cologne – Az. 6 Sa 606/23
The immediate termination of the employment relationship may be justified if an employee forwards emails to a competing company. This was the ruling of the Regional Labor Court of Cologne on June 6, 2024 (Az.: 6 Sa 606/23).
An extraordinary and typically also immediate termination of the employment contract is only possible for serious reasons. The reasons must be so grave that continuing the employment relationship is no longer reasonable for both parties, explains the law firm MTR Legal Rechtsanwälte, which advises, among other things, on labor law.
The LAG Cologne has now ruled that forwarding customer emails to a competing company may constitute an important reason for the employer to terminate the employment relationship.
Non-competition Clause Agreed
In the case underlying the ruling, the plaintiff had been employed as the sales manager by the defendant company in the waste management industry since 2014. His work involved interacting with many industry professionals and experts. His employment contract, among other things, stipulated that he refrain from any competition with his employer. Additionally, he was contractually obliged to keep confidential any matters and proceedings he had learned about through his work.
In May 2022, the plaintiff, together with his brother, founded a GmbH in which he held 30% of the share capital, with his brother holding the remaining 70%. The GmbH operated in similar fields to the plaintiff’s employer and maintained a website with key information for its customers.
Emails from Clients Forwarded
Subsequently, the plaintiff repeatedly forwarded customer emails from his employer to the GmbH. His employer became aware of this in May 2023. As a result, the employer terminated the employment relationship immediately and alternatively with notice for September 30, 2023. The employer stated that the unauthorized competitive activity had completely destroyed the trust in the employee, justifying the immediate termination.
Unsuccessful Action for Protection Against Dismissal
The plaintiff challenged the dismissal with an action for protection against dismissal. He argued that there had been no competitive activity or violation of confidentiality obligations because the GmbH, which he had founded with his brother, was not yet an active competitor to his employer, as it had not yet actively engaged in marketing. The GmbH had not made any sales, generated profits, or issued invoices. Furthermore, there had been no business contacts via the GmbH’s website. He also claimed that the website had not been activated by him but by his brother. His plan was to leave his employer by June 30, 2023, and only after that should the GmbH become active in the market. The forwarding of the emails had never been intended to conclude business with the GmbH.
However, the LAG Cologne did not accept his argument. The court ruled that the employment relationship was validly terminated through the immediate termination.
Important Reason for Immediate Termination
The LAG Cologne justified its decision by stating that the GmbH, founded by the plaintiff with his brother, was a competing company to the employer. The activation of the website already made it active in the market. Whether the activation was initiated by the plaintiff or his brother was irrelevant. By forwarding various customer emails to the GmbH, the plaintiff had supported the GmbH and violated competition law. This violation of competition law constituted an important reason for immediate termination. A prior warning was not required.
The plaintiff had acted in breach of contract by forwarding a large number of emails, thus permanently damaging the trust relationship. Therefore, the immediate termination was also justified, and the LAG Cologne confirmed the first-instance decision of the Bonn Labor Court.
Continuation of the Employment Relationship Not Reasonable
When an employer terminates the employment relationship immediately, they must demonstrate that there are such serious reasons that continuing the employment relationship is no longer reasonable. The court regarded the forwarding of emails as a significant violation of duties justifying immediate termination.
MTR Legal Rechtsanwälte advises on ordinary and extraordinary terminations, as well as other labor law matters.
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