Payment of Wages Not Always Continued when on Sick Leave

An employer and his employee were fussing whether the boss still owed the employee sick pay or not after they had an argument. The LAG Rhineland-Pfalz judged in this matter with its decision of March 20, 2009 (re 6 361/08).

Jack wants to be paid by Daniel for his sick leave for the months September and November 2007. Since their dispute on September 18, 2007, Jack has not performed any work for Daniel. On the day of their argument, Jack packed his personal tools and put them into his car. Daniel refused to pay because he averred that Jack just refused to work anymore - irrespective of any illness. Daniel also had two witnesses who testified to the satisfaction of the court that Jack just did not want to work for Daniel anymore and he was not sick. Daniel only received a report from a physician on Jack's illness and inability to work a week late. §5 I 2 EFZG requires that you inform your employer within three days when you go on sick leave because you are unable to work. Jack held that since he was on official sick leave his was entitled to sick pay.

Jack however argued, he told Daniel on the day of their dispute that he was incapable of working due to a severe illness (exhibit: Jack's witness as a party of the case). The witnessed lied. Daniel wrongly held Jack for a malingerer and did not believe him and tried to persuade him to return to work. The lower court should have listened to his testimony but it did not do so. That was illegal not to hear him - so Jack's arguments. Jack however said, he was willing to exempt his physicians from their code of silence, but they never testified as to his illness.

The LAG held that Jack was not entitled to sick pay. Following §3 cl. 1 EFZG, there is only one valid reason for paid sick leave: you are really sick. The concept behind paid sick leave is exclusively that you are not to lose your job just because you are sick. This prerequisites that the employee would otherwise, i.e. disregarding his disability to work due to his sickness, be eligible for payment, for his salary. Ruling case law sees that an unwillingness to work never makes the employee entitled to receive his salary. Therefore, even when the employee were really sick, not as in this case, and is not willing to perform his labor or duties, he will also not be entitled to paid sick leave.

Practical Remark:

Jack had to lose the case because he was not able to prove that he was really sick. Even when it would have been relevant for the proof, he only "offered" to exempt his physicians from keeping his illness private. Such approach of offering will never work because that only hints that you have something to hide and are playing poker. It is impossible to counterprove witnesses when you get no further than promising their testimony.