In a ruling dated September 9, 2016 (case reference: 15 Sa 131/16), the Hamm Regional Labour Court ruled that an employee is obliged to undergo a medical examination by a company doctor if they have been unfit for work for an extended period of time.
If he repeatedly refuses to do so, this justifies extraordinary dismissal.

Long-term incapacity to work

The employee was employed as an electrical engineer by the city.
His employment relationship was subject to the provisions of the Federal Employees‘ Collective Agreement (BAT) together with special regulations.
Due to an illness, he was unable to work for a period of more than 3 years.

Employee repeatedly refuses to undergo a medical examination

The city had doubts as to whether the illness was serious and whether the employee was really unfit for work.
Although the employee had initially submitted a certificate of incapacity for work, he had also stated that he wanted to carry out his old position as an electrical engineer with illness-related restrictions.
This was contradictory.
For this reason, the city ordered a company medical examination in March 2015.
The aim of this examination was to determine the exact degree of the employee’s ability to work.
The employee did not respond to repeated requests and warnings and refused to undergo the medical examination.

Consequence of refusal: Extraordinary termination

Less than a month after the requests to undergo a company medical examination, the city terminated the employment contract without notice.
All attempts to reintegrate the employee into the city’s operations in line with his illness had failed.
Due to the subsequent repeated refusal to be examined by a company doctor, the extraordinary termination was justified.
The several years of incapacity to work and the contradictory behavior of the plaintiff were sufficient grounds for extraordinary dismissal.

Extraordinary termination is legally effective

Like the city, the LAG Hamm considers the refusal to undergo the examination to be a suitable good cause for extraordinary termination within the meaning of Section 626 para.
1 BGB.
The employee violated the obligation to cooperate resulting from § 3 para.
4 TVöD-B and was therefore acting in gross breach of duty.
He was obliged to prove by means of a medical certificate that he was able to perform the work owed under his employment contract.

„Depending on the circumstances, a breach of the employee’s duty to cooperate under the collective agreement may justify dismissal, including extraordinary dismissal of an […] employee.“

The request for a company medical examination was also justified after three and a half years of incapacity for work.

No milder means apparent

Due to the city’s numerous unsuccessful attempts at integration, no milder means were apparent than extraordinary termination without notice.
Even a continuation of the employment relationship until the end of the ordinary six-month notice period was not reasonable for the city.