Cologne Gunnar Kilian left no doubt when he announced the expulsions: “The reason for the measures are serious misconduct,” said Volkswagen’s Chief Human Resources Officer on August 17, 2018. Finally – so suggested Kilian – the carmaker had identified those who were primarily responsible for the diesel scandal. Five men and one woman received their letters of resignation. Just three years later, Volkswagen believes that the balance sheet is sobering. The Wolfsburg-based company has already suffered a few defeats before the labor courts. The chances for the automaker are not good in the still open proceedings.
How wrong VW was with its assessments shows the latest judgment of the Lower Saxony State Labor Court on April 19. K., a senior diesel engine developer, had sued. Volkswagen accused K. of having known about the manipulation of the EA 189 diesel engines early on. He had violated his obligations under his employment contract by not preventing the use of the software in the engines. He also helped to cover up the fraud against the US authorities.
With the EA 288, the engine of the new generation, K. was also accused of having been jointly responsible for installing the fraudulent software. From the court’s point of view, the allegations were out of thin air. In the justification, the judges state that both the ordinary and extraordinary termination were ineffective.
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“The regional labor court left no doubt that the reasons for the termination were unfounded,” says the engineer’s lawyer, Annette Rölz. Your client did not initiate the fraud, on the contrary, with the EA 288, developed an engine that withstands the emission standards. Volkswagen even sued K. for an additional two million euros in damages – without success.
Volkswagen’s chances are slim
Although the verdict of the state labor court could hardly have been clearer, Volkswagen is now taking action before the federal labor court – with a non-admission complaint. “From Volkswagen’s point of view, the fact remains that the plaintiff has seriously violated his contractual obligations. These breaches of duty were relevant to the termination and the termination was justified, ”says a VW spokesman.
However, Volkswagen’s chances of turning the tide are slim: “The hurdles before the Federal Labor Court are very high. But VW has again gained time as a result. After all, the plaintiff would have to be employed again in accordance with the contract, ”says Rölz.
Volkswagen did little better in a dispute with software specialist J., who worked for the group for 22 years. Volkswagen also counted them among the group of decisive diesel fraudsters. J. should go and answer for any damage.
Volkswagen failed. “The labor court had already rejected the dismissal in the first instance due to formal errors. The regional labor court has also made it clear that Ms. J. is not accused of any breach of duty. In particular, the court confirmed that she was not responsible for the use of the manipulation software, ”says her lawyer Frank Wilke from the Görg law firm.
When the defeat for Volkswagen became apparent in the trial before the Lower Saxony State Labor Court, the group withdrew the appeal. VW was thus forced to offer the engineer a job again. However, the group transferred the single mother of two minor children to the Emden plant, which is more than 300 kilometers from Wolfsburg.
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VW engineers are supposed to pay damages
In the case of employee R., who used to have a top job in diesel engine development, the signs for Volkswagen are not good either. According to the labor court, the extraordinary termination did not take place on time. Volkswagen should have fired the employee two weeks after the diesel scandal became known and not only after the investigation files could be viewed. Now the case lies with the regional labor court. It continues on September 10th.
The dispute also has another facet. Because R. for his part asserts claims for damages against VW due to immoral damage.
The background to this claim is the lawsuit that VW had brought against R. in the first instance in the labor court, according to which he should stand up for all damage in the USA. For his lawyer it is obvious that “this filing of action served to drive up the amount in dispute in the proceedings in the first instance, because this action was withdrawn before the hearing”.
“The accusation is absurd,” said a VW spokesman when asked. It is customary in labor court proceedings for Volkswagen to sue for claims for damages if an employee has committed a culpable breach of duty and thus harmed the company. “We have proceeded accordingly in all Diesel termination cases,” says the spokesman.
However, this is a problem for terminated employees: In the first instance, each party has to bear the legal costs themselves, which depend on the amount in dispute. According to R.’s lawyer, a six-figure sum has accumulated for his client because of this alone.
Volkswagen grants preferential treatment to a suspect
Volkswagen can do different things too. This is shown by dealing with Hanno Jelden. The long-standing head of drive technology is accused of fraud, among other things, and will have to answer before the Braunschweig Regional Court from September onwards. Jelden is said to have been responsible for developing the software that controlled VW’s diesel engines. In addition, he may have been writing the lines in the program that caused the exhaust gas cleaning system to be switched off.
Volkswagen treated Jelden like an innocent lamb. The group is said to have assured him that it will not take any labor law measures, according to the agreement that the then CEO Matthias Müller signed on December 8, 2015. Volkswagen will also explain to the public prosecutor that it has no interest in prosecuting Jelden.
Volkswagen also assured Jelden that it would not make any claims against him. Should third parties do this, Volkswagen would step in for Jelden – even if he should be convicted in criminal proceedings.
There is a reason for the mildness: According to insiders, Jelden supported his employer early on in clearing up the scandal. The lines relevant for manipulation had to be identified in the 60,000 page long software code. Jelden helped Volkswagen a lot with this. Today Jelden is released from work – and continues to be paid.
While Jelden is being spared by VW, other disputes are still open because of the upcoming criminal proceedings. Only in the case of Heinz-Jakob Neusser is there any indication of a short-term solution. According to the public prosecutor’s office, the ex-board member of the VW brand is one of the key figures in the diesel scandal and will soon have to go to the dock.
The car manufacturer is also demanding compensation from Neuss. Negotiations are ongoing. Neusser’s lawyer Axel Hoß says: “We are striving for an overall solution – and we are on the right track.”
More: VW agreed with other car manufacturers on emissions control. The EU Commission is now imposing fines.