By judgment of 7 October 2021 (docket number: 10 Sa 867/21) the Regional Labour Court Berlin-Brandenburg (Landesarbeitsgericht Berlin-Brandenburg – LAG Berlin-Brandenburg) has rejected the action for protection against dismissal brought by a teacher who refused to comply with the obligation to wear mouth-nose protection
In this case, the employment of the claimant teacher had been terminated by the state of Brandenburg because he had described the mandatory mask for children in school lessons as coercion, child abuse and bodily harm in e-mails to the parents’ representative and refused to wear a mouth-nose protection in school. To this end, after repeated requests, he submitted a certificate from an Austrian doctor purchased on the internet. In addition, he had asked the parents to take action against the school with a pre-formulated two-page letter.
In response to the teacher’s action for protection against dismissal, the Labour Court Brandenburg (Arbeitsgericht Brandenburg) had declared the dismissal invalid in the first instance because it lacked the required warning letter. The court terminated the employment relationship against payment of severance pay. Both the plaintiff and the state of Brandenburg appealed against the labour court’s decision.
The Regional Labour Court (LAG) has now declared the dismissal to be effective. Contrary to the opinion of the Labour Court, there was a warning letter. The claimant himself referred to a statement by the defendant state that he would have to expect dismissal if he did not refrain from his behaviour. Subsequently, however, the plaintiff had persisted with his statements in a renewed statement by email to the parents’ representative and other authorities.
As a further reason for dismissal, the Regional Labour Court (LAG) referred to the claimant’s persistent refusal to wear a mouth-nose protection in school. The certificate of an Austrian doctor, which was then presented and obtained from the internet, did not justify an exemption.
The Regional Labour Court (LAG) did not allow an appeal to the Federal Labour Court (Bundesarbeitsgericht – BAG).
The case shows that serious breaches of duty under the employment contract entail the risk of termination without notice.
However, it has again become clear how important it is that such a dismissal is first preceded by a warning letter. The employee must be shown what his contractual duties are, to what extent he has violated them in the opinion of the employer, and that a repeated violation will result in the termination, if necessary without notice, of the employment relationship.