According to a decision of the Eighth Senate of May 28, 2009 (8 AZR 226/08), the employer can demand reimbursement of the necessary costs incurred by the intervention of a detective if he has commissioned the detective to monitor the employee on the basis of a specific suspicion of a crime and the The employee is then convicted of an intentional breach of contractual obligation.
The possibility of carrying out the cost determination procedure in accordance with Sections 103 ff. ZPO does not prevent the employer from suing for reimbursement of costs for detectives. A substantive claim to reimbursement of costs is not the subject of the procedural cost reimbursement procedure. It only examines whether there is a procedural claim for reimbursement of costs in accordance with Sections 91 ff. ZPO, Section 12a ArbGG. After a court decision on the basic costs, a decision is made on whether procedural costs can be reimbursed according to procedural standards and in accordance with cost law. In contrast, an obligation to reimburse on a factual legal basis, for example as a result of an unlawful act, forms a different subject of dispute.
A right to employment in the public service can arise directly from Art. 33 para. 2 GG, provided that all the employment requirements are met in the person of the applicant and his employment is the only lawful decision of the authority, because any other decision would be unlawful or erroneous in discretion. If the public employer permanently fills the advertised position even though a decision has not yet been made on an application for an interim injunction intended to prevent the creation of a fait accompli, it violates the rights of the unsuccessful competitor in accordance with Article 33 paragraph. 2 iVm. Art. 19 para. 4, Art. 20 para. 3 GG. He is entitled to have his rights restored.
This was decided by the Ninth Senate in its judgment of March 24, 2009 ( 9 AZR 277/08 ). According to the legal ideas from Section 162 Para. 2 BGB and §§ 135, 136 BGB, the employer cannot successfully argue against an applicant who has been wrongly passed over that he can no longer fulfill his application process requirements because the position has already been filled. In this case, the person concerned can request to be placed procedurally and substantively in the same position as if the interim injunction had been observed and the application process had not yet been completed.
If the employer cancels the appointment process, this eliminates the claims pursuant to Art. 33 paragraph. 2 GG only if the cancellation took place for objective reasons. An objective reason may be that the position advertised as permanent is only intended to be filled on a temporary basis according to budgetary regulations, or the position that was accidentally advertised for employees is actually only reserved for civil servants.