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
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.
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