Extraordinary termination for feigned incapacity to work effective upon attending a gymnastics course

Lower Saxony Higher Labor Court, judgment of July 8, 2024 - 15 SLa 127/24

A. Facts

The plaintiff had been employed by the defendant as a secretary in an elementary school since December 1, 2007.

At the beginning of September 2022, a staff meeting took place between the plaintiff and the defendant's headmistress, during which the headmistress informed the plaintiff that she could not be granted leave at the beginning of the Lower Saxony summer vacations on July 6, 2023 and on the following days. The plaintiff did not agree with this and insisted on being granted leave. However, this was still emphatically rejected by the defendant.

On July 5, 2023, the plaintiff informed the headmistress by telephone that she had a stomach flu and then presented a certificate of incapacity to work for the period from July 5, 2023 to July 7, 2023. Nevertheless, on July 6, 2023, the plaintiff took part in a trainer license course (C license) at the state gymnastics school. The defendant then heard the plaintiff on July 7, 2023 on suspicion of feigned incapacity to work. In response, the plaintiff stated in a letter dated July 10, 2023, that she had experienced severe abdominal pain and nausea during the night from Tuesday (July 4, 2023) to Wednesday (July 5, 2023), that swallowing had hurt her and that she had a headache. On July 5, 2023, she then visited her doctor, who gave her three days' sick leave. However, after taking the prescribed medication, she immediately felt better. The plaintiff assumes that the symptoms were partly psychosomatic. On July 6, 2023, she still felt “okay” and therefore decided to take part in the trainer license course at the gymnastics school.

By letter dated July 13, 2023, the defendant informed the staff council formed at its company about the intended extraordinary termination of the plaintiff's employment relationship. The staff council responded by letter dated July 17, 2023, stating that it did not consent to the termination. The defendant then informed the staff council by letter dated July 18, 2023 that the extraordinary termination without notice would nevertheless be pronounced.

The defendant terminated the employment relationship with the plaintiff with an extraordinary notice of termination without notice by letter dated July 18, 2023 as a termination for cause and termination on suspicion.

The plaintiff filed an action against this dismissal in front of the Osnabrück Labor Court. This dismissed the action with judgment of January 31, 2024 (Az. 4 Ca 244/23 Ö). The plaintiff then appealed against this judgment to the Lower Saxony Higher Labor Court.

B. Reasons for the decision

The Lower Saxony Higher Labour Court dismissed the appeal as unfounded.

The employment relationship had ended because of the extraordinary termination without notice on July 18, 2023, upon its receipt by the plaintiff on the same day. It considered the dismissal to be effective.

I. Good cause under § 626 BGB

In the plaintiff's behaviour, a feigned inability to work could be seen, which, according to prevailing jurisdiction, is “in itself” suitable to constitute good cause for an extraordinary termination pursuant to § 626 BGB.

It was clear to the court's conviction that the plaintiff was not unable to work during the period from July 5, 2023 to July 7, 2023.

It is true that the defendant, as the employer, has the burden of proof that the plaintiff was actually not incapacitated for work during the certified period despite the certificate of incapacity to work submitted by her. As the employer, the defendant is generally responsible for providing full evidence of the existence of a reason for termination. However, the plaintiff did not sufficiently fulfil the secondary burden of presentation that applied to her, with the result that the defendant's submission was deemed to have been admitted.

1. Secondary burden of presentation for negative facts

It is true that the non-existence of the plaintiff's incapacity to work is a so-called “negative fact”. However, this does not lead to a shift or reversal of the burden of proof. In the present case, it is therefore sufficient for the defendant employer to initially assert the non-existence of the incapacity to work. The plaintiff may not counter this assertion with a mere simple denial, but must, within the framework of the secondary burden of presentation that applies to her, present the factual circumstances that speak in favour of the existence of the incapacity to work. The defendant must then present and prove that the plaintiff's submission is not correct.

The secondary burden of proof for negative facts is an independent procedural legal concept. Accordingly, the opposing party is only permitted to (simply) dispute the existence of a negative fact if he can substantiate the event he has asserted (in this case, the incapacity to work) in terms of location, time and content, either from his own knowledge or on the basis of research. If he (in this case the plaintiff) is unable to do so, it is to be assumed to his disadvantage that the fact to be described by him in the context of the secondary burden of proof (in this case the incapacity to work) does not exist.

The employer, who in principle bears the full burden of proof for the existence of reasons for termination, cannot reasonably be expected to prove that at the time of the sick note there was no illness of any kind. Therefore, it is up to the employee, as part of his secondary burden of proof, to state which specific illnesses or symptoms were present at the time of the sick note and for what reasons the employee was justified in assuming that he would still be unable to work on the day in question. Only when the employee has fulfilled his duty of substantiation in this respect and, if necessary, has released his treating physicians from the duty of confidentiality, the employer must refute the employee's specific submission on the basis of the burden of proof incumbent on him (see BAG, judgment of March 12, 2009 - 2 AZR 251/07, juris).

2. Shattering the probative value of the certificate of incapacity to work

In the opinion of the Higher Labour Court, the plaintiff was unable to meet the secondary burden of proof incumbent on her by merely submitting the certificate of incapacity to work dated 5 July 2023, because the evidential value of this certificate of incapacity to work had been undermined.

a) Probative value of the certificate of incapacity to work

The properly issued certificate of incapacity to work in accordance with § 5 (1) sentence 1 EFZG is the legally expressly provided and in this respect most important means of proof for the submission of an illness-related incapacity to work. According to § 7 (1) No. 1 EFZG, the presentation of a medical certificate as defined by § 5 (1) Sentence 2 EFZG, is sufficient to deprive the employer of the right to refuse to pay remuneration in the event of illness. Therefore, the certificate of incapacity to work is generally of high evidential value. Therefore, it is not sufficient for the employer to simply dispute the incapacity to work if the employee has provided proof of his incapacity to work with a properly issued certificate of incapacity to work. The employer can only undermine the probative value of the incapacity to work by presenting actual circumstances and, in the event of dispute, proving that there are doubts about the employee's illness, with the result that the medical certificate is no longer considered to be probative. The facts that undermine the evidential value may arise from the employee's own statement or from the certificate of incapacity to work itself.

b) Undermining of the evidential value of the certificate of incapacity

In the present case, the Higher Labor Court came to the conclusion that the evidential value of the certificate of incapacity to work submitted by the plaintiff had been undermined.

The court stated that doubts about the incapacity to work initially arose from the fact that, for the period for which the certificate of incapacity to work had been issued, the plaintiff had indisputably previously requested leave, which was not granted to her, although she insisted strongly that leave be granted for this period. The fact that the period of incapacity to work coincided with this period could also be a coincidence, but it did give rise to initial doubts about the existence of the incapacity to work.

These doubts are reinforced by the plaintiff's participation in the trainer license course at the gymnastics school on July 6, 2023 during the certified incapacity to work. Although participation in this course does not necessarily mean that the plaintiff was actually not unable to work. Rather, there are also conceivable circumstances of the illness that lead to incapacity to work but do not prevent participation in such a course. However, the plaintiff has not provided sufficient substantiation in this regard either, as she has not provided any information on the exact cause of her incapacity to work. The Chamber considers the argument that the plaintiff's illness was a gastrointestinal flu, which was likely psychosomatically caused, to be insufficient. In addition, it had to be assumed that the plaintiff had intended from the outset to attend the course at the State Gymnastics School on July 6, 2023, despite her existing work commitment, since she had previously expressly requested leave for that day. It is to be assumed that participation in a trainer license course is only possible after advance registration, from which it follows that the plaintiff registered for this course in advance and then did not deregister despite the defendant's refusal to grant leave for that day. The plaintiff did not provide any explanation when the court expressly asked when the plaintiff registered for the trainer license course.

II. Weighing of interests

In the opinion of the Chamber, the weighing of interests to be carried out in the present case also goes against the plaintiff.

In particular, the Chamber considered the extraordinary termination without notice to be effective even without a prior warning. The court ruled that feigning an inability to work constituted a serious breach of duty. This is because an employee who obtains continued remuneration from his employer for the period of a feigned inability to work thereby commits fraud against his employer in accordance with § 263 (1) of the German Criminal Code (StGB) (see BAG, judgment of June 29, 2017 - 2 AZR 597/16, juris). The court therefore came to the conclusion that the plaintiff could not expect her employer to accept such a serious breach of duty even once.

In favour of the plaintiff, her age, her length of service and the fact that her employment relationship had been trouble-free up to that point had to be considered. However, the plaintiff's behaviour constituted a significant breach of trust, especially since she had previously been informed that she could not be granted leave for July 6, 2023. In this context, it was also irrelevant whether the defendant's refusal to grant leave was objectively justified. The plaintiff could have sought clarification of this question in court. However, the plaintiff deliberately did not take this route, but rather, knowing that she had not been granted leave for the day in question, either registered for the trainer license gymnastics course or did not deregister from it.

C. Practical note

In the present decision, the Lower Saxony Higher Labor Court clearly presents the principles of the secondary burden of proof applicable to the proof of so-called “negative facts”. The decision also follows the prevailing view in jurisdiction and legal literature that an intentionally feigned incapacity to work entitles the employer to terminate the employment relationship without notice for good cause without prior warning.

The Higher Labor Court is correct in assuming that the probative value of the certificate of incapacity to work submitted by the plaintiff is likely to have been undermined, especially since she had previously requested vacation for the same day on which she submitted a certificate of incapacity to work at the end of the day. When this was not granted, she faked her own incapacity to work in order to attend a trainer license gymnastics course, which, according to general life experience, requires advance registration. Knowing that her employer would not grant her leave, she nevertheless registered for the gymnastics course and did not cancel her registration. In return, the plaintiff did not provide any substantiated facts regarding the cause of her incapacity to work or the fact that this prevented her from performing her work but not from attending the trainer license gymnastics course.

Another case in which the jurisdiction regards the evidential value of the certificate of incapacity to work as having been undermined is the presentation of a certificate of incapacity to work by an employee immediately after a termination (by the employer or the employee) precisely until the end of the notice period, combined with a “spontaneous recovery” of the employee at the precise moment a new employment relationship begins on the day after the end of the notice period (see Federal Labor Court, judgment of December 13, 2023 - 5 AZR 137/23). We had already discussed this decision in the January issue of our Employment Law Update.

Nevertheless, even considering the two decisions, it remains the case that in many cases it is difficult for employers to refute the factual account of an employee regarding the actual existence of an incapacity to work and thus to demonstrate a weakening of the evidential value of the certificate of incapacity to work. Therefore, employers are advised to carefully document any suspicious off-duty behaviour during a period for which an employee has submitted a certificate of incapacity to work.