Termination (labour contract) without notice

In the present case, the employer offered the employee to work in the “home office” after the closure of the company. After the employee was not willing to do so, the employer terminated the employment for an important reason due to persistent refusal to work.

The facts

The employer employed the plaintiff as an engineer; the employment contract did not contain any provisions for changing the place of work. After the employee was unwilling to work in his “home office”, the employer terminated the employment relationship.

The decision

The dismissal is invalid, according to the Berlin-Brandenburg Regional Labor Court (judgment, Case No. 17 Sa 562/18). The employer is not entitled to allocate a telework place to the employee solely on the basis of his right to issue instructions under his employment contract. If the employee refuses to carry out telework, there is therefore no persistent refusal to work.

The Landesarbeitsgericht (Regional Labour Court) held the dismissal to be invalid, as had the Arbeitsgericht (Labour Court). The employee was not obliged by his employment contract to perform the telework offered to him. The employer could not unilaterally assign this activity to the employee on the basis of his right of instruction under the employment contract (§ 106 GewO).

This is because the circumstances of telework differ considerably from an activity to be carried out in a permanent establishment. The fact that employees may be interested in telework, e.g. to better reconcile family and career, does not lead to an extension of the employer’s right to issue instructions in this respect.