No continued payment of wages in the case of self-inflicted illnessWhoever is ill receives continued payment of wages from the employer for up to six weeks. However, this does not apply when employees* are at fault for their own inability to work. Only: In which cases is such a self-inflicted injury present??
Hopefully no one gets hurt . . . Copyright by Adobe Stock/Erica Guilane-Nachez
The Cologne Regional Labor Court dealt with this question in its ruling of 30 August 2009. January 2020 to employ.
A hug has consequences
A 24-year-old man works as a service technician in an automotive workshop. Besides him, another man is employed in the workshop. Shortly before Christmas 2018, a scuffle breaks out between these two men before they start work. Here, the service technician clutches his colleague from behind. The "hug" fights back. Finally, both fall to the ground. The service technician injures his ankle. He is therefore ill for just under a week and unable to work.
The employer shows no mercy
He does not show any understanding for his employee's behavior. In particular, he is not willing to continue to pay for the time of illness. Because – according to the employer – the service technician had caused his own inability to work.
The young man fights back
He files a complaint with the labor court and asks that the employer be ordered to continue paying his wages. The labor court dismisses the complaint. It is considered that there is no obligation for the employer to continue to pay remuneration. Because the plaintiff carries even the guilt for its inability to work. The plaintiff disagrees with this decision. He appeals to the state labor court.
The state labor court explains the legal situation
First, the appellate judges* point out that the culpability referred to in the Continued Workers' Compensation Act consists of breaching duties of care. However, these duties of care would not exist towards the employer, colleagues or third parties, but only towards the person who is unable to work.
In a second step, the Regional Labor Court then states that not every negligence that causes an inability to work is sufficient for the amption of such a "fault against oneself". Rather, it is required that a gross violation . . . against the behavior that can be reasonably expected from a reasonable person in his own interest . . ." was present. The appeals court then goes on to say that fault only exists if the inability to work is due to a " . . . incomprehensible, unusually frivolous or wanton behavior or behavior that offends common decency . . ." is due to the. So an exclusion of continued payment of remuneration is coming " . . . only in the case of intentional or particularly reckless conduct."
"Silly physical activity"
This is how the Regional Labor Court describes the plaintiff's embrace of his work colleague. While this was – the judges* continued – a " . . . unreasonable postadolescent encroachment . . ." It therefore suggests a carelessness that seems to be inherent in the young male body. Regardless of this, one could not ame – in relation to his own injury – a particularly reckless or even intentional behavior of the plaintiff. The plaintiff had not wanted to settle a personal conflict violently. Rather, he says, it was about a buddy-buddy showdown. This assessment is also supported by the "victim" of the embrace. The plaintiff's colleague stated that it was merely a "joke". He in no way perceived the hug as an "attack".
Therefore, in the opinion of the Regional Labor Court, the plaintiff's conduct is in no way comparable to a case in which employees provoke a brawl.
The Regional Labor Court amends the first-instance judgment
The court of appeal did not see any personal fault on the part of the plaintiff. It therefore ordered the employer to continue to pay the remuneration for the duration of the inability to work in the amount of € 640.00 gross.
Act on the payment of wages on holidays and in the event of illness (Continued Payment of Wages Act)
§ 3 Entitlement to continued payment of remuneration in the event of illness (1) If an employee is prevented from working due to incapacity to work as a result of illness, through no fault of his own, he shall be entitled to continued payment of remuneration in the event of illness by the employer for the period of incapacity to work up to a duration of six weeks. If the employee becomes incapacitated for work again as a result of the same illness, he or she shall not lose the entitlement under sentence 1 for a further period not exceeding six weeks because of the renewed incapacity for work if 1. he or she has not been unable to work for at least six months as a result of the same illness prior to the new incapacity; or 2. a period of twelve months has elapsed since the beginning of the first incapacity for work as a result of the same illness. (2) For the purposes of subsection (1), incapacity to work through no fault of the employee shall also include incapacity to work that occurs as a result of sterilization or termination of pregnancy that is not unlawful. The same applies to termination of pregnancy if the pregnancy is terminated by a doctor within twelve weeks of conception, the pregnant woman requests the termination and has provided the doctor with a certificate proving that she has sought counseling from a recognized counseling center at least three days prior to the procedure.