If an employee announces a future inability to work in the event
that the employer fails to comply with an unjustified holiday
demand or in the event of other conduct of the employer, this can
represent a good cause ("wichtiger Grund") for
an extraordinary termination of the employment relationship. The
employment contractual obligation to pay due consideration
prohibits the impermissible exertion of pressure. This corresponds
to the previous case law of the Federal Labour Court.
According to a most recently published decision of the Hessian Regional Labour Court (judgement dated 15 April 2011, docket no. 3 Sa 1126/10), however, this does not automatically apply. The Hessian Regional Labour Court had to decide in a case where an employee initially refused to take on courier journeys due to the fact that this activity would cause him pain and would result in his absence from work on the following day due to illness. The plaintiff had indeed only recently returned to work – and was fit for work according to his doctor's certificate – after several weeks' convalescence due to a slipped disk. All the same, the employee undertook the courier journeys as instructed but then called in sick again as of the following day. The employer took this as grounds to terminate his employment relationship without notice. The complaint was successful both in the first and second instances.
In the opinion of the Hessian Regional Labour Court, an extraordinary termination cannot be justified if the employee was able to assume at the time of his announcement that if he was assigned certain tasks his objectively existing primary illness would deteriorate and he would have to be written off sick again. Especially if the employer is aware of the primary illness, he may only understand such an announcement by the employee as an expression of the employee's fear that a worsening of his primary illness can be expected. At the same time, the Hessian Regional Labour Court stressed that the individual circumstances must always be considered in each case.
This decision shows yet again that the unconditional reason for termination simply does not exist. Since the Emmely decision of the Federal Labour Court dated 10 June 2010 (docket no. 2 AZR 541/09) at the latest, which we already reported on in another issue, the need to conduct an extensive examination in the individual case has certainly been highlighted. For employers, the prospects of success of an extraordinary termination therefore remain difficult to assess
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.