Sickness

A CYCLING ACCIDENT WITH FATAL CONSEQUENCES – REGIONAL LABOUR COURT RULES OVER INJURY AND DISMISSAL

1.                  The problem Around 20% of all dismissals of employees are subject to legal action. Therefore it is reasonable that employers want to make sure that dismissals are legally sound. One of the most important points in such lawsuits is whether the letter of notice has reached the employee, since the employer must not only prove that he sent the letter of notice, but also that this letter reached the employee, i.e. that he or …

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Federal Labour Court specifies requirements for termination of employment due to insufficient fitness

1. The Problem There are many jobs that require excellent mental or physical fitness. If this fitness is no longer maintained, the question often arises as to whether the employment relationship can still be maintained. This was also the problem in a case decided by the Federal Labour Court (docket number: 7 AZR 292/17) on 17 April 2019. The plaintiff had been employed as a stewardess for more than 20 years until an aeromedical institute …

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Termination agreements: Employees have no right of withdrawal

On February 7, 2019 the Federal Labour Court (docket number 6 AZR 75/18) ruled that employees cannot withdraw a termination agreement even if it was concluded in the private apartment of the employee. In the case at hand, however, the termination agreement might be void if the fundamentals of fair negotiation (Gebot des fairen Verhandelns) have been ignored. The parties agreed to a termination agreement in the apartment of the plaintiff. The termination agreement comprised …

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Requirements of offering of job performance, relationship to reintegration relationship

On 6 December 2017 the Federal Labor Court (docket number 5 AZR 815/16) decided an employee has to offer his job performance in accordance with the contract of employment, in order to claim remuneration for default of acceptance. It is not sufficient to offer an activity within a reintegration relationship according to sec. 74 Social Security Statute Book V (Sozialgesetzbuch V, SGB V), since the reintegration relationship is a contractual relationship sui generis, which is …

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Extraordinary termination due to feigning incapacity for work

On 7 July 2017 the State Labour Court in Cologne (docket number 4 Sa 936/16) decided that a strong suspicion that an incapacity for work is feigned, is sufficient to justify a termination for good cause, in the course of a dismissal on grounds of suspicion, even though a certificate of incapacity exists. In general a certificate of incapacity for work has such strong evidential value that a trial judge is usually entitled to consider …

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Threat to commit suicide or to run amok can justify a dismissal for cause with immediate effect

On 29 June 2017 the Federal Labour Court decided that a serious threat of committing suicide or to run amok can be a compelling reason to terminate an employment relationship for cause with immediate effect if the employee thereby seeks to exert pressure on the employer (docket number 2 AZR 47/16). The employee and later plaintiff had been employed by the German federal state of Hesse since 1992 and worked – for most of the …

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Sick is sick

The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 2 November 2016 (docket number: 10 AZR 596/15) that an employee who is incapable of work for health reasons does not need to come into the office for a personnel meeting requested by the employer. In this case the employer called the sick employee into the office twice for meetings to talk about future potential for employment after the period of illness. The employee refused both times, referring …

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Ordinary termination of employment due to sickness

A decision of the German Federal Labour Court (Bundesarbeitsgericht) on 13 May 2015 considered an employer’s termination of an employment contract based on personal reasons (the employee’s long term sickness absence) where there was no prior operational integration management (betriebliches Eingliederungsmanagement). The German Federal Labour Court indicated that the requirement on the employer to prove its case in judicial process increases  if an employer terminates an employment contract due to personal sickness and there has …

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