31. Dec 15

Refusing overtime can justify dismissal

In the field of employment law, refusing to work, including refusing overtime, can justify termination of the employment contract. That was the decision of the LAG [Landesarbeitsgericht] Mecklenburg-Vorpommern (Regional Labour Court of Mecklenburg-Western Pomerania) (Az.: 5 TaBV 7/14).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: If an employee refuses to work, the employer can as a matter of principle announce dismissal without notice. This can also occur in the event of a refusal to work overtime. However, for this to happen, there needs to be an agreement to this effect between the employer and the employee, or the employee is obligated to work overtime by virtue of his fiduciary duty. This may be the case, for instance, if the employer gets into serious difficulties that cannot be dealt with in any other way. That was the decision of the 5th Chamber of the Landesarbeitsgericht Mecklenburg-Vorpommern.

However, in the present case, the dismissal of a paramedic was not justified. He was supposed to carry out another transportation shortly before the end of his working hours, which would have meant him having to work considerably longer on that day than contractually agreed. Since he had an important private appointment after work, he refused to carry out the transportation and subsequently received notice of his dismissal.

The LAG Mecklenburg-Vorpommern held that this dismissal was illegitimate due to the absence of an appropriate arrangement, e.g. in the employment contract between the parties, and because there was no emergency. According to the LAG, it is always necessary to weigh up the employer’s interest in having existing tasks performed swiftly and the employee’s interest in adherence to the employment contract and the provisions contained therein.

The case demonstrates why an employment contract ought to be prepared with the utmost thoroughness as well as the importance of being mindful of unusual circumstances in the process. Doing so makes it possible to precisely define the respective interests of the contractual parties at this stage and prevent legal disputes from arising at a later date. Lawyers who are competent in the field of employment law can be of assistance in drafting employment contracts, and equally with respect to dismissals, severance payments and other issues related to employment law.

For more informations: http://www.grprainer.com/en/legal-advice/employment-law/employment-contract.html

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