Suspicion of cocaine use justifies dismissal

Extraordinary dismissal of a works council member on suspicion of drug use

The plaintiff, who was born in 1982 and is obliged to support one child, has been employed full-time by the defendant, a logistics company, as an order picker since June 1, 2002. He had been a works council member released from his work duties since 2018. The defendant has a general works agreement on dealing with addictive substances dated January 21, 2015, which contains, among other things, a company ban on addictive substances. On August 17, 2022, another works council member observed through the windows of the works council office how the plaintiff formed a white powder into a line with a card at his desk and then sucked it through his nose with a tube. When confronted with this, he claimed that it was snuff with dextrose. The plaintiff did not comply with the request for a drug test. On September 12, 2022, after hearing the plaintiff and obtaining the works council’s consent, the defendant issued an extraordinary actual dismissal and, alternatively, dismissal on grounds of suspicion. The plaintiff filed an action for unfair dismissal against this, which was dismissed by the labor court.

Higher Labor Court: Requirements for termination without notice in the form of dismissal on grounds of suspicion are met

The Higher Labor Court confirmed the validity of the dismissal, as the requirements for termination without notice in the form of dismissal on grounds of suspicion were met. It is unclear whether the plaintiff had actually consumed drugs and therefore breached obligations arising from his employment contract, which is why the form of actual dismissal is not relevant. However, strong suspicion of a serious breach of duty, which is a reason for termination in its own right, is sufficient for termination without notice. This requires a concrete, well-founded suspicion and the employer must take all reasonable steps in order to clarify the facts, in particular give the employee the opportunity to make a statement. Possession of cocaine – which is inevitably associated with consumption – constitutes a criminal offense pursuant to Art. 29 (1) No. 3 BtMG (German Narcotics Act). Committing a criminal offense on the employer’s premises during working hours constitutes good cause for extraordinary dismissal “per se”. Even though the plaintiff denied that cocaine was involved, according to the Higher Labor Court, there is much to suggest that this was merely a protective claim, in particular the fact that the plaintiff refused a drug test. The dismissal is also proportionate, as trust in the plaintiff, who also serves as a role model as a member of the works council, has been irrevocably destroyed. The defendant also attempted to clarify the facts of the case as far as possible by hearing the plaintiff and offering him a drug test.

Practical advice: Employers should lay down clear provisions in employment contracts or works agreements

In light of the legalization of cannabis since April 1, 2024, the topic of drug use has also come back into focus in the world of work. In order to create clarity in the company on how to deal with cannabis in the workplace, employers should lay down provisions in employment contracts or works agreements or adapt existing regulations. The works council must be involved accordingly, as bans on drugs and addictive substances are subject to co-determination in accordance with Art. 87 (1) No. 1, No. 7 BetrVG (German Works Constitution Act).