What happened? The plaintiff employee had received a notice of termination without notice, at the same time he was asked to continue to appear at work. When he did not comply, he received another dismissal without notice, again with the request to continue working.
This was out of the question for the plaintiff, as he rejected continued employment as unreasonable until the conclusion of the dismissal protection proceedings. Both dismissals were legally invalid after a court decision. Now the parties argued about wage claims, in the period after the announcement of the termination.
Accusation of malice
Legally, it was a question of whether the employee had maliciously failed to earn income from the employer because the employer offered him work despite the dismissal. The BAG has ruled that the employer has behaved inconsistently. There is a presumption that an employer who terminates without notice because he thinks that he cannot reasonably be expected to continue the employment relationship is not serious about the job offer that has nevertheless been made.
Accordingly, the employee was awarded his outstanding salary. However, the BAG leaves the employer the opportunity to refute the presumption presented by providing appropriate explanations. He had not succeeded in doing so in the proceedings. According to the BAG's press release, the plaintiff could not reasonably be expected to be employed during the trial due to the allegations made against him in the context of the dismissals and the denigration of his person.
René von Wickede is a lawyer specializing in employment law at the law firm Pflüger Rechtsanwälte in Frankfurt am Main.