05. Jul 16

BAG: Dismissal without notice for refusal to work effective

Persistent refusal by an employee to perform his work duties as laid out in the employment contract can give rise to extraordinary and immediate dismissal. That was the verdict of Germany’s Federal Labour Court, the Bundesarbeitsgericht (BAG).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In addition to ordinary dismissal, employment law provides for the possibility of extraordinary and immediate dismissal as well if there is good cause. The persistent refusal by an employee to perform the work owed to his employer is one example of what constitutes good cause. This also applies if the employee erroneously invokes his right to refuse performance. That was the verdict of the Bundesarbeitsgericht in its ruling of October 22, 2015 (Az.: 2 AZR 569/14).

In the instant case, the employee had been employed at the company in question since 1989. As of 2008, his employment contract could only be terminated for good cause due to his conduct. Repeated disagreements arose between employer and employee regarding the tasks that needed to be performed. The employee felt that he was not being used in a way that was commensurate with his abilities. He subsequently received various projects and in June 2012 rejected a project. Shortly thereafter, he informed his employer that it was no longer possible or reasonable for him to carry out his work and he would therefore be availing himself of his right to refuse performance from October 2012. He then followed through on this by no longer turning up to work. Following fruitless discussions and three formal warnings, the employer announced extraordinary and immediate termination of the employment contract on October 26.

The employee’s action for wrongful dismissal was unsuccessful. The BAG held that the dismissal was effective, stating that the persistent refusal to perform the work duties owed to the employer as laid out in the employment contract “in and of itself” justifies extraordinary dismissal. The Court ruled that it is only possible to refuse to work if the work is unreasonable, and this was not the case here. It certainly could not have been expected that the employee would be sick after continuing with his work. Moreover, no personal rights had been severely violated by the employee. As such, it had been a mistake for the employee to assume that he was entitled to refuse performance. The Court went on to say that the employee must bear the risk associated with this error in law, and that the objective legal situation alone is decisive.

Giving effective notice of termination can prove to be challenging for employers. Should any issues arise pertaining to employment law, they can turn to lawyers who are experienced in this field.

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