Salary after wrongful Termination even without Vaccination

Thursday, 30.06.2022

If the invalidity of a dismissal is established before the labour court following a claim against wrongful termination, the salary must in principle continue to be paid for the period after the expiry of the notice period. Thus, employees subsequent payment for periods during which they did not work because of the dismissal. In a recent decision, the Labour Court in Bonn clarified that unvaccinated staff in hospitals can largely rely on this to. The obligation to vaccinate in hospitals since March does not prevent this as long as there is no formal ban on activities. The plaintiff before the Labour Cort in Bonn must be paid back pay for several months.

Facts of the case: unvaccinated trainee ineffectively dismissed

The plaintiff has been employed by a hospital as a trainee (Auszubildender) since 2019. He is unvaccinated and has not recovered. However, hospitals in Germany have been subject to compulsory vaccination since 15 March 2022. Staff must have a vaccination or convalescent card and present it to the facility management. The hospital had dismissed the plaintiff without notice on 1 December 2021 because he refused to put the mask over his nose despite being asked to do so by the manager.

According to the Labour Court’s decision, the summary dismissal is invalid. The hospital management should have given the trainee a warning before dismissing him. The decision obliges the hospital to pay the salary since the dismissal.

Activity ban only for new unvaccinated staff

The case would have been resolved differently only if the trainee had formally no longer been allowed to work as an unvaccinated person. However, this would have required a ban on activities. The law itself only prohibits the employment of new staff hired after 15 March 2022. For the remaining unvaccinated and unrecovered staff, there is only a notification to the health department. The health authority can then prohibit the person concerned from continuing to be employed. However, such a prohibition by the health office was missing here. The trainee had already been employed before 15 March. He could therefore have continued to work without the notice of termination and could thus also claim the salary from the date of termination.

ArbG Bonn, Urteil vom 18.05.2022, Aktenzeichen 2 Ca 2082/21