Quit your notice, take sick leave – and get paid for the entire notice period. Sounds too good to be true. A court has now decided that.
Anyone who gives notice and takes sick leave for the entire notice period must expect that they will not receive any continued payment of wages. To do this, however, the employer must provide facts that prove that doubts about the employee's illness are justified. This emerges from a decision by the Schleswig-Holstein State Labor Court.
In the specific case pointed out by the Labor Law Working Group of the German Bar Association (DAV), a woman terminated her employment – and asked directly in the letter of termination that a confirmation of termination and working papers be sent to her home address.
From the day on which the letter of dismissal was dated, she no longer appeared at work and submitted certificates of incapacity for work continuously until the end of the employment relationship. The employer then did not continue to pay wages.
While the woman's payment claim was successful before the Lübeck Labor Court, the situation was different before the Schleswig-Holstein State Labor Court, which dealt with the case in the second instance. This dismissed the payment claim.
In its decision, the court initially referred to the high evidentiary value of certificates of incapacity for work. However, this can not only be shaken if an employee takes sick leave at exactly the right time until the end of the notice period in connection with his termination.
When viewed as a whole, he is shocked even if the sick note with several certificates exactly matches the period of continued payment of wages, and the letter of termination shows that the author no longer expects his presence from the outset.
If the employer succeeds in undermining the evidentiary value of the medical certificate of incapacity for work, it is then up to the employee to present and prove concrete facts that allow the conclusion of an illness.
In this specific case, however, the plaintiff was unable to convince the court that she was unable to work. She is therefore not entitled to continued payment of wages. The appeal was not permitted and the decision is not final. An appeal against non-admission was filed.
