Child sick: right to time off from work?If a colleague's child falls ill and is under the age of 12 at the time of illness, the colleague has a right to time off from work. If your employer refuses to give him this, he can stay away from his job on his own authority. A dismissal for this reason is generally invalid. This was recently ruled by the Regional Labor Court (LAG) of Rhineland-Palatinate. In the case on which the decision was based, the termination was ultimately effective anyway. For the employee did not yet benefit from the protection against dismissal.
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Sample letter: Failure to comply with accident prevention regulations
The case: The employee, a single father of his then 4-year-old son, worked as a courier driver for his employer. He had started his employment in June 2015. His employment contract stipulated, among other things, a 6-month probationary period. During which a 2-week notice period should apply.
At the end of November 2015, the employee had one week of vacation. During this time (on 1.12.2015), he informed his employer by means of a message via the Internet (WhatsApp) that his son would have to undergo an operation the following week. He therefore requested an additional day of leave in this way. In addition, he informed the employer that the remaining days of the week of the operation would be covered by health insurance. The following day, the employer declared his agreement.
child sick longer than expected
The employee then accompanied his son to the hospital for 2 days at the beginning of December 2015. However, during the hospitalization, it turned out that the child would be on sick leave longer than initially anticipated, and therefore the employee would ultimately be out longer than planned.
The doctors ied him a certificate for the period from 11.12. until 31.12.2015 from. In addition, they certified him the necessity of care. The employee faxed the medical certificate and the certificates for the receipt of sick pay in case of illness of a child to his employer on the same day.
In the late afternoon of that day, the employer then personally delivered to the employee an ordinary notice of termination effective 25.12.2015. The employee defended himself against the dismissal with a lawsuit. He based this on the fact that the termination was invalid. It contains an inadmissible measure regulation. Because the employee amed that he had been dismissed exclusively because of his sick child.
Termination during the probationary period okay
The decision: The court held that the termination was legally valid (LAG Rhineland-Palatinate, 8.11.2016, Az. 8 Sa 152/16). The employment relationship had been terminated in compliance with the relevant notice period of 2 weeks. The court justified this by stating that the Protection Against Dismissal Act (KSchG) does not yet apply to the employee's employment relationship. Because the 6-month waiting period according to § 1 Abs. 1 KSchG had not yet expired at the time of the dismissal. The employee was rather still in the probationary period.
In the decision, the court also addressed why there was no violation of the prohibition of the rule of measure. It clarified that this prohibition is violated if there is a direct connection between the exercise of a right and a disadvantage. The judges did not ame this here. They said that such a violation could only be considered if the employer had terminated because the employee had left his workplace without authorization. But that was not the case here. Unfortunately, the employee could not prove this connection.
You can draw these conclusions
The decision shows that the requirements for a probationary period notice are significantly lower than for a regular notice of termination. Because if there is an explicit regulation on the application of a probationary period, the employment relationship can be terminated during the probationary period with a shortened notice period of 2 weeks (§ 622 para. 3 Civil Code). However, the shortened notice period does not apply automatically. Rather, it must have been regulated
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