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Extraordinary cancellation due to persistent refusal to work

A mistaken legal interpretation does not protect the employee
(Federal Labor Court, decision dated October 22, 2015 – 2 AZR 569/14)

If an employee persistently refuses to perform his work, this behavior can constitute an important ground for an extraordinary cancellation without notice. It can also be considered as persistent refusal to work, if the employee wrongly relies on the right to refuse performance and/or the right of retention. The employee bears, on principle, the risk of an incorrect legal assessment of a right to refuse performance or a right of retention himself, according to the BAG.

In the case upon which the decision is based, the employee felt bullied by his employer and claimed that the employer has impeded his advancement in his career. After a legal dispute between the two parties of the employment contract in 2009, the work activities of the employee subsequently changed several times. After a part of the activities the employee had to perform most recently had been cut, the remaining activities provided work for only 3 to 4 hours per week. The employee rejected the proposal submitted by the employer to take part in another project of the company. Instead, he approached the personnel management of the employer with a petition and argued i.a. that “massive development blockades” had been imposed on him and that he was a victim of “organizational, large-scale bullying” which caused “downright frustration” to him, making him ill. He “suggested” a paid time off until his retirement. In a subsequent e-mail, he announced that he would exercise his right to refuse performance. After several unsuccessful warnings, the employer exercised an extraordinary termination of the employment relationship without notice, due to persistent refusal to work.

The lawsuit filed against this was rejected by the BAG because the employee purposely and lastingly refused to perform his work and the blanket assertion of the employee did not entitle him to the right to refuse performance. It is irrelevant if the employee himself believed this, as he did not excusably error in law.

Recommendations for practice:
The decision by the BAG is explicitly welcome. It is a frequent occurrence that employees – possibly also due to an inadequate legal advice – think that they are entitled to refuse work performance, even though this does objectively not apply. The court was correct in deciding that in such a case, the employee’s erroneous legal interpretation cannot lead to the result that the employer does not have certain sanctions at his disposal. The employee bears the risk of a cancellation due to persistent refusal to work even if he has obtained legal advice. An inevitable error of law only exists if the employee should not have expected this after careful assessment of the factual and legal situation.

Lawyer and certified<br/>specialist for labor law
Lawyer and certified
specialist for labor law
Tobias Grambow

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