Working time fraud can be a criminal offense if committed intentionally. In addition, the employer is in many cases entitled to termination if the breach of trust comes out. Sometimes, however, a prior warning is necessary.
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Working time fraud: what is meant by this?
An employee who intentionally enters incorrect times in the timekeeping and thus works less than specified commits working hours fraud. The employment contract regulates to which work performance the employee is obligated and how many hours the weekly or monthly working time covers. Those who do not fulfill this obligation and disguise this by false information, cheat the employer and may – depending on the seriousness of the offense – be prosecuted for fraud according to § 263 of the Criminal Code (StGB).
Working time fraud: termination or warning?
But also labor law consequences threaten. If an employee can prove his / her job time fraud without any doubt and the company has suffered considerable damage as a result, the employer can terminate the termination without notice according to § 626 German Civil Code (BGB). However, if it is an isolated case and the employee is reasonable, the warning may be sufficient and a termination without notice be ineffective. The Landesarbeitsgericht Berlin-Brandenburg, for example, has decided in the case of a dismissed because of working time fraud wife, that a previous warning would have been necessary (AZ 10 Sa 2272/11). The judges evaluated in favor of the employee, among other things, that she had been employed in the company for 20 years and was not noticed negatively until the offense. In addition, the employer did not suffer any damage, since the woman has nevertheless done all the tasks.
Employee must be heard
Since a termination without notice is a hard labor law consequence, the employer must first give the employee the suspicion of working hours fraud the opportunity to express themselves in a fair hearing to the allegations. This was also decided by the LAG Berlin-Brandenburg in the case of the dismissed employee. However, according to a later decision of the Federal Labor Court, the employer is not obliged to inform the employee of the topic of the conversation if he invites him to such a hearing before a suspicion is dismissed (AZ 6 AZR 845/13).
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