Cologne Labour Court, judgment of 17.06.2021, ref. no.: 12 Ca 450/21
Facts
Employee and employer argue about the existence of the employment relationship.
The plaintiff has been employed by the defendant for more than 5 years. He looks after customers for the defendant as a service technician in the field. Since April 2020, all field service employees have been required to wear a mask when attending customer appointments. During a customer appointment, the plaintiff did not wear a mask, even after being asked to do so by a customer employee. Instead, the employee said that he would not carry out the order while wearing a mask.
Employee claims "snot rag exemption" from his employer
A short time later, the plaintiff sent the defendant an email with the subject "snot flap exemption", in which he attached a six-month-old certificate of exemption from the mask requirement due to "medical reasons". In a reply, the defendant instructed the plaintiff to wear the face mask anyway, as the information in the certificate seemed too imprecise, and offered an examination by the company doctor, which the plaintiff refused. The plaintiff later sent another letter to the defendant in which he provided information about his state of health.
Employer cancels due to refusal to wear the mask
This was followed by a hearing of the works council with the content of the plaintiff's intended dismissal. The defendant then dismissed the plaintiff for cause and, alternatively, with notice.
The plaintiff filed an action for protection against dismissal against this with the Cologne Labour Court. The plaintiff applied for a declaration as to whether the termination of the employment relationship was effective for cause or with due notice and applied for continued employment under the previous employment contract conditions.
The defendant applied for the claim to be dismissed, citing the Corona Protection Ordinance and noting doubts about the authenticity of the certificate. The plaintiff's behaviour was a financial and unjustifiable liability risk for the company if the employment relationship were to continue until the end of the notice period.
The employer did not conduct a social selection process.
Labour court rules in favour of the defendant company.
The Cologne Labour Court dismissed the claim on the grounds that it was unfounded. The Dismissal Protection Act was applicable to the employment relationship. However, the employment relationship could be terminated without notice for good cause. Good cause exists if the employee breaches a primary obligation, but this must be considered on a case-by-case basis. Extraordinary dismissal can only be considered if the employer cannot reasonably be expected to take all milder measures in view of the overall circumstances. An extraordinary dismissal is ineffective if an ordinary dismissal would have been appropriate. In the opinion of the court, the extraordinary dismissal by the defendant was effective. The plaintiff's behaviour constituted a breach of the principal obligation.
Employee's behaviour poses an unreasonable risk to the company
The risk of infection by the plaintiff for potential customers was unreasonable for the defendant, also with regard to the possible subsequent liability claims against the defendant. Even taking into account the submitted six-month-old certificate, which did not even contain a clear justification, the risk of the plaintiff's continued employment was unreasonable in the opinion of the court. Following a warning, the plaintiff again did not wear a face mask during his work.
The court's overall assessment also took into account the duration of employment and the circumstances of the plaintiff's life, but the consideration was serious due to the risk of the current epidemic situation and the protection against possible infection by the plaintiff was more serious. Consequently, the claim for continued employment was unfounded due to the effective termination of the employment relationship.
Source: Employment Court Cologne
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