Refusal to work

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In labor law, refusal to work is the unlawful breach of duty by the employee .

General

The legal obligation to work results from the employment contract . The concrete work requirement by defining the job content is then effected by the management right of the employer from § 106 GewO . Whether there is a case of refusal to work can therefore be determined by comparing the contractually owed work with the work specifically requested by the employer and refused by the employee. In this respect, it is decisive whether the work demanded by the employer is within the limits set by the employment contract and, if it is an instruction in accordance with the law of directors, it meets the requirements of Section 315 BGB , i.e. corresponds to equitable discretion . Since the employment contract is a long-term obligation , the duty to work to perform the work is renewed daily ( fixed debt ). In cases of incapacity for work (e.g. illness ), the employee is temporarily released from his duty to work. There is also no refusal to work if there is another exemption from the duty to work .

The employee only no longer has to perform work if the basis of the employment relationship is changed, which could only be brought about with a change notice. The transfer of the employer ends where the transferred employees the task this unreasonable is. If, for example, the employer assigns an employee work that is completely unrelated to his job and is unreasonable for him, this is no longer covered by the employer's right of direction. If the employee is entitled to refuse work that the employer assigns in terms of type, time and place in violation of the right of direction, there is no refusal to work. Then the employee does not need to carry out this task and can exercise a right of retention on the work. In such cases, however, the employee faces the legal risk that there is objectively no right of retention to the work and that he therefore violates the right of his employer to issue instructions.

Legal issues

For a persistent refusal to work can the Federal Labor Court (BAG), according to also lie in the fact that the employee is wrongly based on a retention according to § 273 para. 1 BGB and / or a right to refuse to § 275 3 BGB cites para.. An employee persistently refuses to do the work assigned to him if he consciously and emphatically does not want to do it. Whether he was obliged to work is decided according to the objective legal situation. If the employee refuses to work on the assumption that he is acting lawfully, he himself has to bear the risk that his legal opinion will prove to be incorrect. The BAG understands the refusal to work as the deliberate failure to perform work that is deliberately controlled by the employee. In the case, an employee took part in an external seminar even though the employer had objected to this participation. The employee nevertheless attended the seminar, which as an unexcused absence meant a refusal to work; therefore he rightly received a warning from the employer .

Right to refuse performance

According to Section 275 (3) of the German Civil Code (BGB), the employee can refuse to perform work if he has to do it personally and if it cannot be expected of him after weighing up the obstacle against it with the employer's performance interests. This regulation concerns the tension between contractual loyalty and the unreasonableness of work. It (only) dissolves it in favor of the debtor if the provision of the service is highly burdensome for him because there is a case of particular difficulty in performing the service. The right to issue instructions can also be limited by the employee's basic rights, such as freedom of conscience . As a so-called third party effect of the fundamental rights, the Basic Law also acts indirectly in the relationship between the contracting parties. For example, a pacifist as an employee in a general pharmaceutical company (not specialized in military medicine) cannot be expected by his employer to develop drugs that are specifically suitable for positively influencing the waging of a nuclear war .

Right of retention

According to § 273 para. 1 BGB workers shall not on a due right to pay refuse owed work performance against the employer until its due consideration is effected. The employee may have the right to withhold work if the employer culpably fails to fulfill his main or secondary obligations resulting from the employment relationship. This is the case, for example, if the employer seriously violates the employee's health or personal rights and further violations are to be expected. If the employee makes legitimate use of a right of retention, there is no refusal to work. However, the principle of good faith dictates that the right of retention should not be exercised disproportionately, for example in the event of only a short delay in payment of the remuneration. Despite non-performance, the employee then retains his claim to remuneration according to § 615 BGB.

Refusal to work during a strike

The employee's right to participate in a (lawful) strike justifies withholding work. However, there is no entitlement to remuneration. The employer may not reprimand the employee for taking part in the strike. Workers from companies that have not been on strike may refuse to go on strike in companies that are on strike.

For temporary workers since April 1, 2017, the new in § 11 para. 5 Employment Act (AÜG) inserted and directed to the borrower prohibition to use temporary workers to replace strikers in an on strike operation.

Other rights of refusal

Other reasons that can lead to a right to refuse are, for example , a collision of duties , risk of infection with dangerous diseases, inadmissible overtime , the provision of unsafe work equipment (e.g. a non-roadworthy vehicle) or if necessary work equipment is not provided by the employer. If the assignment of a work area represents a transfer without the approval of the works council / staff council , the employee does not need to carry out the work in the new work area.

Refusal to work in social law

According to Section 159 (1) No. 1 SGB ​​III, refusal to work is behavior that is in breach of contract in social law , so that an employee's entitlement to unemployment benefits is suspended for the duration of a blocking period . If an employable person in need of help causes his unemployment by refusing to work, his unemployment benefit II is reduced by 30% of the standard benefit ( Section 31 (1) sentence 1 no. Lc SGB ​​II ). In the case of those in need, unemployment benefit II is limited to the cost of accommodation and heating if they refuse to work ( Section 23 (5) sentence 1 SGB II).

species

A distinction is made between partial and total refusal to work . Partial is when the employee only temporarily refuses to work legally owed overtime or certain types of contractual but unpleasant work. This also includes absenteeism from work without excuse, the employee takes an unapproved vacation , attends an unapproved seminar or excessive Internet use at work , which must first be warned. A warning can, however, be dispensed with if the employer can see that the employee does not want to meet his contractual obligations at all. Herein lies the total refusal of an employee to permanently refuse to work after the end of the vacation; it fulfills the act of breach of contract . The duty to provide services for civil servants also includes the ban on strikes , which not only includes total refusal to work, but also going on a slow strike or working according to regulations . This and the internal termination are characterized by a reduction in work motivation , work performance and work quality , so that the threshold of refusal to work can be reached.

Legal consequences

Unjustified refusal to work is a performance disorder that the employer does not have to accept. The unjustified refusal to work represents a breach of contractual obligations. He can react to this with graduated disciplinary measures. The weakest form would be an official reprimand , followed by a warning , operating fines or even termination . The refusal to work is suitable after a previous warning to justify a behavior-related dismissal. In serious cases of persistent refusal to work, termination without notice after a warning may be justified. In this case, a claim for damages against the employee arises from Section 628 (2) BGB.

See also

Individual evidence

  1. ^ LAG Lower Saxony , judgment of December 8, 2003, Az .: 5 Sa 1071/03; legally binding
  2. ^ BAG, judgment of April 12, 1973, Az .: 2 AZR 291/72
  3. ↑ A persistent refusal to work usually occurs after a warning has been issued to no avail
  4. ↑ BAG, judgment of October 22, 2015, Az .: 2 AZR 569/14
  5. ↑ BAG, judgment of August 29, 2013, Az .: 2 AZR 273/12 - Rn. 29, 32
  6. ^ BAG, judgment of November 10, 1993, Az .: 7 AZR 682/92
  7. ↑ BAGE 135, 203 = BAG, judgment of August 13, 2010, Az .: 1 AZR 173/09 - Rn. 12
  8. ↑ MüKoBGB / Wolfgang Ernst, BGB Commentary , 6th edition, 2013, § 275 Rn. 116
  9. ↑ Josef Alpmann, in: juris Praxiskommentar-BGB , 7th edition, 2014, § 275 Rn. 70
  10. ↑ Reference work of the Federal Labor Court Labor Law Practice (AP) No. 27, 1989, to § 611 BGB
  11. ↑ BVerfGE 48, 127 , 163
  12. ^ BAGE 62, 59
  13. ↑ BAG, judgment of March 13, 2008, Az .: 2 AZR 88/07 - Rn. 39 ff.
  14. ↑ BAG, judgment of July 25, 1957, Az .: 1 AZR 194/56, and
    BGH, judgment of January 19, 1978, Az .: II ZR 192/76, Arbeitsrechtliche Praxis , No. 56 on Article 9, Basic Law ( GG), industrial action (December 2005, page 12)
  15. ^ BAG, judgment of April 27, 2006, Az .: 2 AZR 386/05
  16. ↑ BAG, judgment of December 7, 2006, Az .: 2 AZR 182/06
  17. ↑ BVerwGE 73, 97
  18. ↑ Fritjof Wagner / Sabine Leppek, Beamtenrecht , 2009, pp. 118f.
  19. ^ BAG, judgment of May 24, 1989, Az .: 2 AZR 283/88
  20. ↑ BAG, judgment of January 19, 2016, Az .: 2 AZR 449/15
  21. ↑ Ute Teschke-Bährle, Labor Law - Quickly Captured , 2018, p. 84 f.