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12-28-2021Article

Update Employment Law January 2021

Termination of a Corona denier

Press release of the ArbG Darmstadt of 9.11.2021 - 9 Ca 163/21 

According to the Darmstadt Labor Court, repeated denial of the Covid19 pandemic can justify termination of a 15-year employment relationship even without a warning. This applies at least if the employee addresses such statements to his students in the course of his teaching activities and at the same time tolerates that they violate hygiene regulations.

Facts

The 64-year-old plaintiff had been employed as a vocational school teacher in Groß-Gerau since 2006. In November 2020, the state education authority warned the plaintiff, among other things, because he himself wore the mouth-nose protection only up to below the nose, described the wearing of the mask to the students as useless, and also described the Covid19 pandemic to them as a conspiracy of the global pharmaceutical industry and denied its existence. According to the allegation of the defendant state of Hesse, the plaintiff thereafter continued to tolerate that pupils did not wear the mouth-nose protection and refrained from airing the classroom. In addition, he expressed that the first concentration camps would be built for vaccination opponents and that he himself would have to be prepared to go to a concentration camp if he did not get vaccinated. Furthermore, he called Covid19 a “pure lie”. Because of that, the State of Hesse terminated the existing employment relationship with the plaintiff without notice. After it was agreed that this termination should not be upheld, the defendant state once again terminated the employment relationship with regular effect as of December 31, 2021.

Content of the press release

The Darmstadt Labor Court considers the second termination legally valid and dismissed the claim for unfair dismissal after hearing several witnesses. According to the press release, the court justifies the social justification of the termination as follows: Despite appropriate warnings, which were even exceptionally dispensable, the plaintiff had not shown that he is willing to observe the occupational safety regulations, regardless of his personal views. Instead, he had consistently invoked his freedom of opinion. In the event of his return to work, it was to be feared that he would continue to evaluate obvious facts as debatable expressions of opinion, unsettle the students, cast doubt on the legally mandatory infection and occupational safety measures, and jeopardize their enforcement. In addition, the defendant state would not have to accept that the undiscerning plaintiff would continue to make or at least suggest completely remote comparisons between the obligation to follow infection protection measures and decisions of conscience or conditions under the Nazi dictatorship.

Practice note

Breaches of lawful hygiene regulations that are culpably committed are a breach of contractual duties and thus a fundamentally suitable reason for termination. In this context, it is not decisive whether these are directly issued by the employer as part of a company hygiene concept or are based on public law regulations, such as the school corona decrees of the federal states. Consequently, the same is true for the toleration of violations by third parties. This applies even more if such behavior is persistently continued despite warnings. It is nevertheless noteworthy that the Labor Court considered the prior issuance of a warning to be unnecessary. This is by no means obvious due to the long existence of the employment relationship. In this respect, it can be assumed that the court assessed the plaintiff's individual conduct in dispute in its entirety and considered it to be particularly serious. The judgment is not legally effective and the full text is not (yet) available.

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