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Refusal to work: In these cases, there is a risk of dismissal

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Employees must fulfill their obligations under the employment contract. If they do not do that, it is a matter of refusal to work. This should not be risked recklessly: A violation of warnings in the employment contract has serious consequences up to and including termination. We explain what exactly refusal to work means and when your job is in danger ...

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➠ Content: This is what awaits you

Definition: when is it really refusal to work?

As an employee, you are obliged to perform appropriate tasks by the signed employment contract. This applies to both primary and secondary obligations. Refusal to work is the deliberate and willful failure to fulfill these obligations.

In other words: only if you deliberately fail to fulfill your duties is it actually refusal to work. If, for example, external circumstances prevent you from doing your job, don't refuse to work straight away.

Examples of refusal to work

In addition to the direct obligations that are named in the employment contract, the employer has the so-called right to issue instructions. In this way, employees can be deployed according to operational requirements. You must follow these instructions as long as they are lawful (more on this below in the article).

Some examples of refusal to work are:

  • Intentional non-fulfillment of main duties and tasks
  • Ignore direct instructions from the supervisor
  • Unexcused absence from work
  • Do not work contractually agreed overtime

An example from practice: Employees and bosses disagree about the amount of fair pay. From then on, the employee no longer carries out the tasks assigned to him. However, this is anchored in his employment contract as a central duty and main task. Thus, it is a deliberate refusal to work, which is relevant under labor law.

The case would be different if, for example, the boss was in arrears with the salary payment and the employee had already pointed this out to him. In this scenario, the craftsman is likely to legitimately resign and exercise his right of retention.

This is NOT considered a refusal to work

On the other hand, many behaviors are mistakenly associated with refusal to work. These situations have nothing to do with:

  • Perform less in a day
  • Chat with colleagues for a few minutes
  • Work unfocused and make a mistake in the process

Exceptions: When is refusal to work allowed?

The right of employers to issue instructions has limits. There are some exceptions in which employees do not have to follow this - and refusal to work is legitimate. There are no consequences in these cases:

  • Instruction to break a law
    Of course, employees do not have to break the law and make themselves liable to prosecution. Instructions that would lead to this do not have to be followed. It is sufficient if the statutory working hours are exceeded. (Ref .: 6 Sa 53/07).
  • Beliefs
    Refusal to work may be permitted if the activity in conflict is incompatible with the moral or religious principles of the employee. However, it must be possible to make these credible. (5 Sa 270/08). In this case, dismissal despite refusal to work is not legal.
  • Unreasonable instructions
    Tasks can also be refused if they are personally unreasonable. This is the case, for example, if they endanger the employee's health. Other personal reasons can also be given for a temporary refusal to work, such as caring for your own child or an urgent visit to the doctor.
  • Work stoppage during a strike
    If you take part in a strike, for example to obtain better working conditions, you are legally allowed to stop working in the company during this time.
  • Employer fails to perform its duties
    The employment contract regulates mutual obligations. If the employer does not comply - due to non-payment - a refusal to work may also be permitted.

What are the consequences of refusal to work?

Employers take refusal to work very seriously and react quickly. Ultimately, the company suffers damage - both financially and reputationally. Instead of refusing to work, a mutual solution should be found in a conversation. It's constructive and professional.

If employees wrongly fail to fulfill their duties, there is a risk of serious consequences under labor law. These are the options employers have to respond to the behavior:

  • admonition
    The employee is informed of his misconduct by means of a warning. It is the mildest form of reaction that is not yet a punishment. This is useful when it can be assumed that there was no bad intent or that it was a minor misconduct.
  • Warning
    The tone of a warning is much sharper. In this, employers make it clear that behavior is no longer accepted, that it needs to be changed and that there is a risk of further consequences. A warning is also often seen by the courts as a prerequisite for a later termination.
  • termination
    If the milder remedies are unsuccessful, termination may result. Deliberate and repeated refusal to work leads to job loss. Whether a termination without notice is possible depends on the individual case, the behavior and the damage incurred.
  • damages
    Anyone who criminally refuses their own work and thus causes financial damage can be asked to pay for it. The employer has to prove that he wanted to avert this damage - if this was not possible, high costs could arise.

Tips for employers: Procedure in the event of refusal to work

Employers must take action against refusal to work. However, wrong reactions can lead to an ultimately costly and unsuccessful dispute in the labor court. To avoid this, companies can use the following process as a guide.

  1. Check employment contract
    Before consequences are threatened or immediately implemented, the situation should be carefully examined. Is it really a criminal refusal to work that requires action? It helps to take a look at the employment contract: Is the service not provided part of the main or secondary obligations?
  2. Analyze reasons
    In the second step, possible reasons for the refusal to work should be analyzed. Perhaps the refusal was justified and therefore permissible?
  3. Admonition or warning
    Only when it is certain that it was a criminal refusal to work is there a warning or warning. Which instrument you choose should depend on the individual situation.
  4. termination
    The termination remains as the last step if previous measures were ineffective. Until then, document everything as precisely as possible. A dismissal protection suit and thus the way to a labor court are likely.

Refusal to work is an individual decision

Refusal to work is a complex issue. Clear situations in which employees refuse to work and consequences are initiated are rare. Instead, such disputes regularly end up before the labor court.

Here, the judges examine in individual cases whether it is a matter of refusal to work and a criminal act within the meaning of labor law. Or whether there is a legitimate reason why an employee has not complied with the duties. Workers need to be aware of the possible consequences.

Small points often make the difference against the effectiveness of a termination. The reason: a lack of persistence in refusing to work. One-time failure to fulfill a contractual obligation is usually not enough to terminate the contract. Only really persistent refusal, where employees rigorously defend themselves, can justify a dismissal.

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January 16, 2021Author: Jochen Mai

Jochen Mai is the founder and editor-in-chief of the career bible. The author of several books lectures at the TH Köln and is a sought-after keynote speaker, coach and consultant.

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