The Arnsberg Labor Court issued a ruling dated April 22, 2016 on file number 1 Ca 25/16 decided that a transfer from night shift to day shift when night work is agreed upon in the employment contract is unlawful.
The parties dispute the effectiveness of a transfer.
The plaintiff has been employed part-time by the defendant since January 1, 1998. The basis is a written employment contract dated March 6, 1998.
The defendant operates two addiction clinics in C, on the one hand the “Specialist Clinic B” and on the other hand the “A”. In the past, the plaintiff was almost always deployed on night/on-call duty in the A.
In two letters dated October 20, 2003, the defendant issued two warnings to the plaintiff. In a letter dated April 27, 2006, the defendant issued another warning to the plaintiff.
On September 4, 2015, the plaintiff smoked in the presence of patients. In this context, she also took part in a conversation with patients. The details of the conversation and the plaintiff’s explanations are partly in dispute. A patient complaint about the plaintiff subsequently arose. The defendant then issued another warning to the plaintiff in a letter dated October 19, 2015.
From October 26, 2015, the plaintiff, with her consent, was employed on day shift at Specialist Clinic B for four weeks.
In a letter dated January 7, 2016, the defendant ordered the plaintiff to be permanently transferred from on-call/night shift at A to day shift at specialist clinic B.
With her lawsuit filed with the court on January 12, 2016, the plaintiff objects to the transfer. She considers this to be ineffective.
The lawsuit is justified.
First of all, it should be noted that the transfer of the plaintiff from the department of specialist clinic A in the on-call/night shift to the day shift in the reception ward of the specialist clinic B, i.e. early, intermediate and late shift, ordered by the defendant in a letter dated January 7, 2016, is ineffective .
The defendant was unable to transfer the plaintiff from on-call/night shift to day shift within the scope of her management rights.
The plaintiff is entitled to employment in on-call/night shifts under her employment contract. This results from Section 1 of the employment contract concluded between the parties. It is stipulated there that the plaintiff will be employed as an employee on call/night duty.
The defendant was also not entitled to employ the plaintiff on day shifts based on the provision in Section 5 Paragraph 5 of the employment contract. In this provision, the parties have stipulated that the plaintiff is prepared to work day shift in the event that she is unable to perform night shifts for reasons for which she is responsible or because legal provisions conflict with this. The requirements of this regulation are not met.
There are no legal provisions that prevent the plaintiff from being employed in night shifts. The defendant has also not been able to demonstrate that the plaintiff cannot perform night shifts for reasons for which she is responsible.
The plaintiff had been employed by the defendant on call/night duty for almost eighteen years since January 1, 1998. During this time, the defendant warned the plaintiff of misconduct in the night shift through warnings dated October 20, 2003, April 27, 2006 and October 19, 2015. Beyond the allegations set out in these warnings, the defendant has not provided sufficient substantiation of further misconduct by the plaintiff, particularly in the period between 2006 and 2015. To the extent that the defendant stated in the first paragraph of page 11 of its written statement dated March 7, 2016 that “according to the knowledge of Dr. D “repeatedly either over-identification with patients or a lack of differentiation” occurred, “but not to this serious extent”, this unsubstantiated statement does not prove that the plaintiff has shown a lack of suitability for the night shift. Rather, the presentation suggests that the plaintiff did her work in a manner that was also acceptable to the defendant.
In any case, the plaintiff worked on call/night duty for a period of more than nine years between April 2006 and September 2015, without the defendant questioning her suitability in the form of warnings. The defendant actually deployed the plaintiff on standby/night duty. This strongly suggests that the plaintiff is also suitable for working on call/night duty.
Even if one assumes with the defendant that the plaintiff violated her employment contractual obligations and in particular violated the distance requirement by participating in a conversation with patients and by smoking in the presence of patients on September 4, 2015, these behaviors can be fundamentally missing The plaintiff’s suitability for work in on-call/night shifts cannot be proven.
The defendant’s assessment that the plaintiff is unsuitable for night duty, even if this assessment is shared by her responsible medical staff, turns out to be a mere value judgment on the basis of facts available to the court, on which the defendant cannot base her transfer (cf. LAG Rhineland-Palatinate January 21, 2009 – 7 Sa 400/08 – juris; LAG Hesse November 20, 1978 – 11/1012 Sa 576/76, juris).
Even if one were to assume with the defendant that there were doubts about the plaintiff’s suitability for night duty due to the incidents on which the warnings were based, the transfer would prove to be disproportionate. After issuing the warning on October 19, 2015, the defendant would have had to wait to see whether the plaintiff would again show behavior in the course of her work that could prove that she was unsuitable for working on night shifts. Then at the earliest she should have reacted with a transfer or, if necessary, termination.
