133
| Dismissal due to sick leave is a delicate matter. As an employer, you have to fear that such a termination is invalid. |
In appropriate cases, it makes sense to stick to a decision of the LAG Mecklenburg-Vorpommern. According to this, a dismissal due to sick leave is only an inadmissible measure if the permissible absence from work is to be sanctioned.
The LAG works out the principles as follows:
- After § 612a BGB, the employer may not disadvantage an employee in a measure because the employee exercises his rights in a permissible manner.
- The ban on discrimination is intended to protect the employee’s freedom of will when deciding whether a right is exercised or not.
- A violation of the ban on reprimands of § 612a BGB exists if the permissible exercise of rights is the main motive, ie the essential motive for the disadvantageous measure.
-
- It is not sufficient that the exercise of rights only provides the external reason for the measure.
-
- If the employer acts on the basis of a bundle of motives, the main motive must be taken into account.
- The plaintiff employee bears the burden of explanation and proof for the requirements of § 612a BGB and thus also for the causal connection between the disadvantageous measure and the permissible exercise of rights.
- He must present facts that indicate a direct connection between the employer’s measure and a previous permissible exercise of rights. The employer must explain this presentation in detail
- As a rule, sanctioning of the permissible absence from work is not involved if the employer demands that the employee fulfill ancillary obligations that are possible and reasonable during the incapacity to work, such as information or the handing over of work equipment, and reacts to violations with a termination.
Those |
LAG Mecklenburg-West Pomerania 31.1.23, 5 In 104/22, retrieval no. 234663