BAG No dismissal of the chief doctor due to a second marriage

Federal Labor Court: No dismissal of the chief physician in a Catholic clinic

09/09/2011

In a recent ruling, the Federal Labor Court (BAG) in Erfurt has assessed the dismissal of a Catholic chief physician as unlawful. A Catholic hospital had quit the senior physician after he remarried. Although the general practice of the Christian institutions was not questioned, the clinic had to act uniformly with its executives. „The remarriage of a Catholic chief physician at a Catholic hospital does not always justify his due dismissal“, so the highest Labor Court. Other salaried doctors, who are not members of any church and have extra-marital relationships, were not served with any dismissals. Here the clinic act inconsistently, so the labor judge.

Doctrine Claim to Workers
The two major Christian churches in Germany make some high moral and clerical claims on their employees. If you want to work for the church, you have to be a member of the Catholic or Protestant church in many places. Furthermore, private lifestyles are often agreed at the beginning of the employment relationship, which in the true sense of the word should have nothing to do with working life. That's what happened to a chief physician of a Catholic clinic in North Rhine-Westphalia.

The first marriage of the doctor had failed because the ex-wife divorced from the chief physician. After a while, the plaintiff lived „in wild marriage“ unmarried with a new partner together. In 2008, both gave the „Yes word“ and married in a civil ceremony without church ceremony. A Roman Catholic wedding is only possible with a second marriage if the partner of the first marriage has died or the first marriage has been annulled. When the management of the Catholic hospital learned of the second, the chief physician was dismissed.

Federal Labor Court overturned dismissal of the chief physician
The Federal Labor Court in Erfurt now dismissed the dismissal as a high instance and declared it ineffective. The revision of the employer was rejected. There is no doubt that the Supreme Labor Court has the ecclesiastical right to self-determination under Article 5 (2) of the GO. Terminations are in the opinion of the judges quite permissible, if an employee „due to a lack of loyalty to the teaching of the Church“ is terminated. Nevertheless, the doctrine of the church should always be weighed up with the interests of the employee, said the chief judge in the verdict. In the present case, however, the hospital management has "renounced a life-long testimony of its senior staff, which is committed to the Catholic faith and ethics throughout and without exception". For the Catholic institution had hired even numerous non-Catholic doctors, who had also married a second time. It was also knowingly tolerated that the chief physician lived together with a woman without a marriage vow over two years. The clinic has demonstrably accepted this circumstance without already taking legal action here.

A renewed marriage of dealing is one „very private matter“ on top of that is protected by the fundamental right. In view of these facts and the circumstances described, the rights of the plaintiff and the second wife outweigh those of the clinic, the BAG ruled. It should be noted that the plaintiff is still the religion of the Catholic Church, but as the plaintiff formulated, „to their requirements only from a circumstance attributable to the innermost district of his private life failed“. The termination is thus socially unjustified in the sense of § 1 Dismissal Protection Act (KschG).

BAG followed the decision of the European Court of Justice
With the recent ruling, the judges followed a ruling by the European Court of Human Rights in September last year. Here, too, an ecclesiastical institution had terminated a choirmaster due to an extramarital relationship. The Court denounced the dismissal and saw it as a violation of the fundamental right to private life. The Catholic Church had quit the musician because he too had separated from his wife to live with another woman. The State Court of Dusseldorf now has to reopen the case here. Federal Labor Court, judgment of 8 September 2011: File number: BAG 2AZR 543/10 and
Lower court: Landesarbeitsgericht Düsseldorf, file number: 5 Sa 996/09 (sb)

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