An employee drops out on the first day of work with a back complaint - now what?

Staff shortages have been a major problem in the past few years. The hospitality industry, too, faces substantial challenges when it comes to finding suitable staff. So, when you think you have found a suitable candidate, it is very disappointing if they drop out on the first day of work with a – probably long-term – back complaint. What can you do as an employer?

Last November, the court ruled on this in a similar case where an employer had offered an employee an employment contract by email. The parties subsequently reached agreement by email on the salary and on the commencement date, but did not effectively enter into a written employment contract.

The employee started working on October 1 but went home on the first day with a back complaint and never resumed work. As no employment contract had been signed, the employer argued that there was (as yet) no employment contract and therefore refused to continue paying the salary. The employee believed that there was an employment contract and therefore initiated provisional relief proceedings to claim his salary, to be increased by the statutory increase – which is up to 50% of the monthly salary – and statutory interest.

The Subdistrict Court ruled that since the employee was claiming his salary, his urgent interest – which is a precondition for litigating in provisional relief proceedings – was a given. The existence of the claim was also ‘sufficiently plausible’, according to the Subdistrict Court. The Subdistrict Court found that the law did not require an employment contract to be signed and, in view of the email correspondence, it could be assumed that the parties had intended to enter into an employment contract. Moreover, the employee had also received multiple work instructions prior to employment and came to work on the following day and actually carried out some work, albeit briefly. After reporting sick, the employee was also examined by an occupational physician. This, too, indicated the existence of an employment relationship, the Subdistrict Court found.

The provisional relief judge could not rule on the employer’s argument of error and/or deception in the proceedings. This needed to be assessed in ordinary proceedings on the merits. The provisional judgment therefore was that the employer had to pay the employee his salary. The statutory increase was reduced to zero given the short term of the employment, partly because the end of employment was already in sight. This meant that the employer had to pay the normal salary plus statutory interest, as well as the costs of the proceedings.

In short, there may be an employment contract may even if none was signed. However, signing an employment contract is useful, because you can then – for example – agree on a probationary period if the employment contract is entered into for more than six months. That was not the case here, so it would not have helped the employer in this matter. If a valid probationary period had been agreed, the employer could have terminated the employment contract with immediate effect, without observing a notice period. Employers may also give notice of termination with immediate effect during the probationary period in the case of illness. This is only different if the disease is chronic, since a ban on discrimination may preclude termination.