The Third Corona Wave Ends - the Corona Wave in Court Begins

The corona case numbers and the incidence value are falling. Medically speaking, the third corona wave is broken. It seems, however, that the "fourth" corona wave, the labour court wave, is beginning. More and more cases related to corona are keeping the labour courts busy. Typical disputes involve questions of remuneration, e.g. in the case of short-time work, questions of continued payment in the case of corona illnesses as well as quarantine at home and abroad or breaches of duty against the hygiene concept stipulated by the employer (e.g. wearing an FFP2 mask) or terminations of employment relationships.

Dear Readers,

Another judgement has been rendered in connection with corona. In its judgement of 15 April 2021 (8 Ca 7334/20), the Cologne Labour Court ruled on the invalidity of a dismissal - with non-applicability of the German Protection Against Unfair Dismissals Act - due to officially ordered domestic quarantine.

The Case

A master roofer has been employed as an assembler since the beginning of June 2020. In October 2020, the health authority ordered a domestic quarantine for the master roofer by telephone. The reason for the quarantine is a contact person who tested positive for the SARS-CoV-2 virus. The master roofer informed the employer of this and that he would therefore not be able to come to work. The employer had doubts about the quarantine ordered by the authorities and demanded written confirmation. The master roofer attempted to obtain written confirmation from the health authority. The health authority promised to provide such confirmation, but did not confirm the quarantine in writing at first.

The employer did not pay the remuneration for October 2020 and terminated the existing employment relationship with the master roofer with effect as of 8 November 2020 in a letter dated 26 October 2020.

Judgement of the Cologne Labour Court

The action for protection against dismissal was successful. The German Protection Against Unfair Dismissals Act (Kündigungsschutzgesetz) was not applicable because the waiting period had not been fulfilled and the company was too small. The Cologne Labour Court considered the dismissal to be arbitrary, as it was unethical and contrary to good faith within the meaning of sections 138 and 242 of the German Civil Code. In the opinion of the Cologne Labour Court, the direct temporal proximity of the dismissal to the quarantine ordered by the authorities did not alone result in an "exclusion of dismissal in the form of special protection against dismissal". Employees were also protected from dismissals based on irrelevant motives outside the Protection against Unfair Dismissals Act.

My best wishes for getting through the fourth wave of labour law.

With warm (labour law) regards

Dr Erik Schmid

_{Note: This blog post has already been published in the labour law blog of Dr Erik Schmid at Rehm Verlag (www.rehm-verlag.de).}