Extraordinary termination without notice due to refusal to wear a mouth and nose cover

The Cologne Labor Court decided that the extraordinary dismissal of a service technician who repeatedly refused to wear mouth and nose protection was effective. The certificate presented by the man, which was supposed to justify this refusal, was not clear enough. In addition, his designation of the mask as a "snot rag" raises questions about the severity of the alleged medical restrictions.

The plaintiff was hired as a field service technician by the defendant. Due to the pandemic, the defendant employer ordered that all service technicians must wear face and nose covers when working with customers. In early December 2020, the plaintiff refused to fulfill service orders with customers asking him to wear masks.

Alleged certificate

The plaintiff then submitted to the defendant in June 2020 a medical certificate made out on blank paper, which "confirmed" that it was not possible for the plaintiff to wear an appropriate mask for medical reasons. The defendant did not acknowledge this certificate due to a lack of specific information about the plaintiff's clinical picture and instructed him to wear a mouth and nose cover anyway. After the plaintiff continued to refuse customer orders, the defendant issued a warning. After further protests and lack of insight on the part of the plaintiff, the defendant terminated the employment relationship extraordinarily. The ArbG, however, dismissed the following dismissal protection suit on the grounds that the plaintiff's persistent refusal and the associated refusal to carry out tasks that require customer contact represent a violation of the contractual obligations.

Certificate not sufficiently informative

Furthermore, the submitted certificate does not justify the behavior of the plaintiff. Since the certificate was not up-to-date and was issued without any diagnosis, the plaintiff's objections were found to be null and void. There are also justified doubts about the legitimacy of the medical condition alleged by the plaintiff, which emerged from expressions such as "snot rag" and the fact that the plaintiff did not comply with the offer of a company medical examination.

Conclusion

Two things emerge from this judgment. A certificate, which is intended to justify an extensive exemption from the applicable hygiene concept, must meet certain minimum requirements (timeliness and detailed diagnosis). Furthermore, an employee who violates the guidelines of the hygiene concept without such a certificate violates the conditions of the employment contract. Despite the falling number of corona infections, it is still up to the employer to issue instructions on how to wear mouth and nose protection. If the employee objects to this, he will object to the employer's right to issue instructions, which is a reason for a warning and possibly also a termination.