30. Mar 17

LAG Hamm: Dismissal without notice for breaching duties to cooperate effective

Employees have duties to cooperate. These can also cover examinations by company doctors. If these duties are breached, there is then the prospect of dismissal without notice.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If an employee repeatedly breaches his duties to cooperate, his employer may be entitled to issue exceptional notice of dismissal with immediate effect. That was the verdict of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] in its judgment of June 9, 2016 (Az.: 15 Sa 131/16).

In that case, the dismissed employee had worked as an electrical engineer at a retirement home, with respect to which the local authorities were responsible. Between November 2010 and April 2014, he had been signed off sick from work but for a short intermission. The employee’s degree of disability resulting from his illness was 30 per cent. It later became contentious whether the man was once again fit for work from April 2014. While he had told his employer that he was able to work as an electrical engineer again, he did not turn up to his workplace. Moreover, he did not comply with his employer’s request to have him examined by the company doctor. When he failed to attend the fourth scheduled examination by the company doctor despite prior formal warnings, the employer issued exceptional notice of dismissal with immediate effect and, in the alternative, exceptional notice of dismissal subject to a period of notice based on social factors.

The employee’s action against wrongful dismissal was unsuccessful. The Court held that the employee’s conduct itself sufficiently justified terminating the employment relationship with immediate effect for good cause. It went on to say that the employee’s breach of his duties to cooperate could also potentially justify exceptional notice of dismissal. The Court ruled that the employee was guilty of refusing to comply with an examination by the company doctor and had thus grossly breached his duties. He was said to have been explicitly made aware of his breaches of duty by means of formal warnings. The Court concluded that the employer no longer had recourse to less severe measures than exceptional notice of dismissal with immediate effect, and the employee was not entitled to have the formal warnings removed from his personal records.

The employer was said to have a legitimate interest in an examination by the company doctor in order to clarify the extent to which the employee was unfit for work. The employee had himself given rise to grounds for dismissal by violating his duties to cooperate.

Whether an exceptional notice of dismissal is effective is a decision that is always made on a case-by-case basis. Lawyers who are experienced in the field of employment law can advise employers on matters relating to dismissal as well as other issues pertaining to employment law.

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