Summary Dismissal for Working Elsewhere during Labour Incapacity

An employee who was incapacitated due to a restricted ability to walk and who, according to the occupational physician, could only walk with crutches, was found to be working for another employer without using his crutches. The summary dismissal the employer subsequently decided on was upheld by the Sub-district Court.

On September 1, 2021, a petrol station employee dropped out for work with hip complaints.
When, one year later, the employee was still ill, a parallel track process was started. According to the occupational physician’s advice, the employee had only marginal work opportunities and was strongly restricted in standing and walking. Walking would only be possible with crutches. Sedentary work would be possible.
At the end of October 2022, however, the employee was spotted at night as a cashier in a restaurant where people eat after a night out. Then it turned out that employee was able to constantly stand on his own feet, to frequently walk through the restaurant and to do so without using the crutches. When this was reported to the employer, he/she decided to engage an investigation agency. Observations by this investigation agency in the period from November 18, 2022 till December 13, 2022, showed that the employee had walked around in his father's store and had placed signs and flags outside in the street without using the crutches. The employee had been employed in that store in the context of the parallel track process. When faced with the results of the investigation, on December 20, the employee denied that he had been working for another employer. Then he was summarily dismissed by the employer for lying to the employer and for working for another employer during labour incapacity.
The employee did not accept the summary dismissal and requested the Sub-district Court to annul the dismissal. The Sub-district Court, however, rejected the request. The prohibition on termination during illness, put forward by the employee, does not apply to a summary dismissal. The Sub-district Court also held the opinion that the summary dismissal was given without delay. The fact that the employer had first engaged an investigation agency after the first time that the employee had been found working elsewhere, was quite understandable, according to the Sub-district Court, because it could not be excluded that the employee had only worked there once. After having been informed of the findings of the investigation on December 16, 2022 and the presentation of the investigation report on December 20, 2022, the employee was summarily dismissed on December 20, 2022. Therefore, according to the Sub-district Court, the employer has acted sufficiently expeditiously. There was also an urgent reason for the summary dismissal in the form of lying to both the employer and the occupational physician and working for another employer during incapacity. The Sub-district Court did not blame the employer for not having consulted the occupational physician first before dismissing the employee, account being taken of the significant difference between the strong limitations the employee had claimed with the occupational physician and the findings of the investigation agency. According to the Sub-district Court, it indicated inducement to mislead the occupational physician. Therefore, it had disadvantaged the employer, because the employer could also have offered the employee adapted work. Finally, the Sub-district Court believed that the employer had sufficiently adhered to the principle of adversarial hearing.
At the employer's request, the Sub-district Court ordered the employee to pay the costs of the investigation agency, an amount of close to € 6,000.

The summary dismissal is the severest penalty in Employment Termination Law and it is governed by the strictest requirements. Expeditious action, a sufficiently compelling reason (even if the personal consequences of the dismissal for the employee are taken into account) and application of adversarial hearing are needed anyhow.
If it concerns an employee who is suspected of working elsewhere during labour incapacity, additional requirements stipulate that it is not allowed to engage an investigation agency, unless for a good reason, and that the occupational physician has to decide on the compatibility or incompatibility of the observed conduct with the identified illness and its resulting incapacities.
In the above case, the latter had not happened, but since even without the occupational physician’s advice the outcome was clear, the Sub-district Court saw no objection.