Dismissal (Outside the Scope of German Dismissal Protection Act) Based on Officially Ordered Domestic Quarantine Not Valid

The Cologne Labor Court has ruled that the termination of an employment relationship based on an officially ordered domestic quarantine of an employee for the purpose of infection protection due to the Covid19 pandemic is generally legally invalid even outside the scope of the German Dismissal Protection Act.

Facts

The ruling of the Cologne Labor Court of April 15, 2021 (8 Ca 7334/20) is based on the following facts: The parties are disputing the legal validity of a dismissal outside the applicability of the Dismissal Protection Act in connection with an officially ordered domestic quarantine for the purpose of infection protection due to the Covid19 pandemic.

The defendant is a master roofer and operates a roofing company as a small business with no more than ten employees. The plaintiff has been employed by the defendant as a fitter since June 2, 2020.

In the second half of the month of October 2020, the health department contacted the plaintiff by telephone and ordered a domestic quarantine for the containment of the Covid19 pandemic. Background was that the brother of the plaintiff's girlfriend had been tested positive for Corona virus and the plaintiff had been notified to the health department as a contact person.

The plaintiff informed the defendant of the ordered quarantine and that he could not show up for work for the time being because of it. The defendant doubted the official quarantine order and demanded written proof of this, which the plaintiff was initially unable to provide because he had not received it from the municipal authorities. When the plaintiff called the city's health department, he was promised a written quarantine order, but it was not issued immediately. Subsequently, there was extensive correspondence between the parties via WhatsApp, in which the defendant's tone became harsher and he called the plaintiff a "sicko," a "truant" and a "social brat."

When the defendant had not received proof on October 27, 2020, he terminated the employment relationship.

The municipal authorities issued a written order to the plaintiff only in a letter dated October 30, 2020, in which an "order of segregation in so-called domestic quarantine" based on the German Infection Protection Act was ordered against the plaintiff, this for the period "from October 23, 2020 up to and including October 31, 2020". The plaintiff transmitted at least the first page with the specific period of the ordered quarantine to the defendant via WhatsApp.

The plaintiff filed an action for protection against dismissal with the Cologne Labor Court on November 6, 2020.

Reasons for decision

The Cologne Labor Court upheld the action and determined that the dismissal was invalid, although the Dismissal Protection Act does not apply to the employment relationship. The German Dismissal Protection Act was inapplicable for the following reasons: At the time of the dismissal, the plaintiff had not been employed for more than six months; moreover, the defendant's business is a so-called small business within the meaning of Section 23 of the German Dismissal Protection Act. The Cologne Labor Court also found that an exclusion of dismissal by way of a "special protection against dismissal" or similar during an officially ordered quarantine was not provided for by law.

However, the Cologne Labor Court assumed that the dismissal was based on irrelevant motives and was issued arbitrarily and was therefore invalid pursuant to Sections 138 and 242 of the German Civil Code (BGB). According to the case law of the Federal Constitutional Court and the Federal Labor Court, based on the basic rules of Section 138 BGB (immorality) and Section 242 BGB (principle of good faith), an employer must observe a minimum degree of social consideration when issuing notices of termination, even if the Dismissal Protection Act is not applicable. Arbitrary dismissals and dismissals based on irrelevant motives are therefore inadmissible even outside the applicability of the Dismissal Protection Act in the first six months of an employment relationship or in a small business.

Taking into account the sense of decency of all fair-minded people, according to the court, it follows that it is not acceptable under the rule of law for an employee to lose his or her job solely because an official quarantine order due to the Covid19 pandemic was initially communicated to the employee only verbally (i.e. initially without any possibility of proof towards the employer) and its written confirmation did not take place until a considerable time later due to the overload of the health authorities in connection with the contact tracing of Covid19 infected persons.

In the required overall consideration, the Cologne Labor Court also assumed to the defendant's detriment that the latter had asked the plaintiff to disregard and break the officially ordered quarantine, initially in order to perform his work, and later, immediately after the termination, in order to pick up his bicycle from the defendant’s premises.

Note for practice

Challenging a dismissal in a small company is regularly difficult. The Cologne Labor Court was completely correct in finding that the dismissal was immoral, in particular on the basis of the WhatsApp correspondence in question.

An employer does not necessarily have to believe an employee if he communicates an only verbally ordered quarantine, adheres to it and does not resume work. However, even in a small company, the employer bears the risk if the employee was not allowed to start work and was unable to do so, especially if the employer terminated the employment relationship only for this reason. In the present case, the employee could not have acted in any other way than he did; he was not in breach of his duties at all. In particular, he was not able to submit a medical certificate of incapacity for work, unlike in the case of incapacity for work due to illness. He had not received such a certificate immediately, although he had tried to obtain it several times.

At the same time, the present case shows that the Labor Court was able to rule on a well-documented and undisputed set of facts, because these were essentially derived from the extensive WhatsApp communication between the parties, which the plaintiff was thus able to present.