Christopher Caldwell has published an interesting article in the weekend edition of the Financial Times under the above heading. He refers to a recent case in Germany concerning the termination of employment where the “relationship of trust” is broken. “Airtight evidence is not necessary; credible suspicion of theft, no matter how small, will suffice. In February, the Berlin labour court upheld Emmely’s dismissal”.
He starts off as follows: “That pen I took out of the supply room at work and am now using to scribble down these notes … did I steal it? Probably not, as long as the work involves an article. It is not until I write out a grocery list or a doodle or a poem that I become a menace to private property. How seriously the property rights of employers should be enforced against employees is often a fuzzy area, and it is made the more fuzzy by the fact that the stakes are often small. One is more likely to leave the office with a paper clip than a printing press”.
He continues: “It was national news in Germany this week when the Federal labour court announced it would revisit the case of Barbara E, known to the public as ‘Emmely’. For several months her story has had the tabloids and talk shows in an uproar. Last year, after 31 years as a supermarket cashier in Berlin, Emmely was fired by her employer, Kaiser’s, for allegedly taking €1.30 ($1.83, £1.11) worth of bottle-return coupons that a customer had lost, and cashing them for herself. There is a long line of cases in German law involving Bagatelldiebstahl – employees fired for stealing such items as fish sandwiches and pieces of cheesecake”.
South African law relating to termination of employment has consistently held that employers cannot terminate employment based solely on suspicion of misconduct. “The Berlin court did not believe it was dealing with mere suspicion. It cited evidence that Emmely indeed took the coupons. The court also believed she tried to defend herself by making false statements to implicate a fellow employee. She has been accused of lying in the press, too”.
Caldwell reports that there have even been suggestions in Germany that Emmely should be criminally prosecuted.
It seems that there are suggestions of victimisation. “Two political scientists set up a committee called “Solidarity with Emmely”. Their view is that Emmely was fired for her labour activism, with the alleged theft a mere pretext. But her credentials as an organiser do not seem particularly strong. The Frankfurter Allgemeine Zeitung noted it was unlikely she was let go because of union activities, given that the court has sometimes been lenient towards actual destruction of workplaces by organised-labour ‘flash mobs'”.
In South Africa trade unions are expected to refer unfair dismissal disputes to the CCMA and in support any member whose services have been terminated unfairly but the unions do not normally embark on campaigns in the press.
In Germany it may be different. “Her service workers’ trade union, Verdi, is responsible for defending her in court, but has been lukewarm about defending her in the press; one representative told Der Tagesspiegel: ‘My impression was, she is being used for political ends’. Focus magazine interviewed her fellow workers, one of whom said: ‘No one here will miss her’. Emmely is not, at first glance, the most obvious working-class hero”.
The article continues: “But the very improbability of Emmely as a symbol shows how strong is the public need to see her as one. A poll over the winter showed that 69 per cent believe her firing was unjust. Wolfgang Thierse, the left-leaning Social Democrat, attacked the February decision as ‘barbaric’, ‘asocial’ and ‘disproportionate’. His more conservative party colleague Frank-Walter Steinmeier, the foreign minister and a candidate for chancellor, also deplored Emmely’s firing, as did economics minister Karl-Theodor zu Guttenberg of the Christian Social Union”.
Clearly there is a hidden agenda to all of this. “The reason for unanimity among politicians who are usually bitterly divided is obvious. The case takes place against a backdrop of corporate irresponsibility”. German unemployment has risen in recent years and top management have not covered themselves in glory. “Volkswagen, Siemens and the Lidl supermarket chain have all been rocked by scandals. Bild, the country’s leading tabloid, has rallied to Emmely’s defence, comparing her prospects to those of Klaus Zumwinkel, the former Deutsche Post chief who in January was fined €1m for tax evasion”.
In dealing with respect for the judiciary Caldwell states: “The cold war division of Germany makes an odd reappearance in the Emmely case. Paradoxically, the old West German tradition of respect for the judiciary branch gives free rein to demagoguery. Politicians assume there is so little prospect that the labour court’s decisions will be influenced by political rhetoric that they can simply take the populist side without considering the consequences”.
Bearing in mind that in South Africa the constitutional court recently decided that the ‘reasonable arbitrator test” applied and not the ‘reasonable employer test’ it is interesting to note what Caldwell has to say: “Maybe it is disproportionate to end a 31-year career over €1.30. On the other hand, without the freedom to decide what is proportionate for yourself (or your business), there is not much freedom to speak of”.
How indulgent should employers be towards employees who do not see anything wrong with helping themselves to goods that belong to the employer? Caldwell continues: “But the ghost of the old German Democratic Republic is visible, too. Emmely started her career in the East at the retailer HO. In that time and place, there was a more indulgent attitude towards stealing from employers. Consider the street markets for burnt-out light bulbs that used to exist in the Soviet Union and its satellites. You could get a bulb that did not work for a couple of pfennigs or kopecks. Why was a burnt-out light bulb worth anything at all? The answer was that having one allowed one to steal a working bulb from one’s employer and hide the evidence. That did not seem to bother anyone. Where government forbids business initiative, stealing can be a kind of civil disobedience”.
Caldwell concludes: “When we say the law does not concern itself with trifles, what do we mean by a trifle? €10? €1.30? The Emmely case is a reminder of how arbitrary the answers to these questions can be”.