Ordinary termination after expiry of the lock-up period

1. facts

The Administrative Court of the Canton of Aargau ruled on a legal issue of practical relevance to public personnel law in its decision of September 20, 2021 in the proceedings WKL.2019.3. The judgment will be published as a leading decision in the AGVE (Aargauische Gerichts- und Verwaltungsentscheide).

The facts to be assessed by the Administrative Court were based on the termination of a janitor employed by the Canton of Aargau at a secondary school in an employment relationship under public law. The employee started his job on September 1, 2015 with a workload of 100 % and was on sick leave of 100 % from March 24, 2017 until May 9, 2017 due to an operation on his right wrist. Due to complications, he was unable to work at 50 % from June 20, 2017, and at 100 % from June 25, 2017. In a letter dated March 21, 2018, the Canton of Aargau terminated the janitor's employment as of June 30, 2018.

The canton justified the termination of the employment relationship by stating that, due to the incapacity to work which had already lasted for a long time and was expected to continue for a long time, the employee was no longer suitable to fulfill his contractual duties.

The employee contested the termination and requested a declaration that the termination of March 21, 2018 was unlawful and that he should be paid compensation in the amount of six months' wages in the event that he was denied reinstatement.

2. considerations of the administrative court

The Administrative Court had to examine whether there were objectively sufficient grounds for termination in the form of lack of suitability pursuant to § 10 para. 1 lit. b of the Cantonal Law on the Basic Features of Personnel Law (PersG). Lack of suitability to perform the work agreed in the employment contract is an objective reason that is not the fault of the employee. The employee is unsuitable if, for objective reasons that are related to his or her person and must have a connection with the work, he or she is unable or insufficiently able to perform the work agreed in the employment contract (insufficient technical, managerial or social skills). This also includes health problems in particular.

However, the principle of proportionality dictates that in cases of illness, a lack of suitability or fitness may only be assumed if this condition persists over a longer period of time and an improvement within a reasonable period of time is not foreseeable. The lack of suitability, as well as the lack of medical fitness, are objective impediments that are not the fault of the employee and may not be assumed lightly. The employer must also exhaust all possibilities of reasonable further employment before terminating an employee through no fault of the employee.

According to the Administrative Court, it must also be taken into account from a proportionality perspective whether the incapacity for work only affects the specific workplace (workplace-related incapacity for work) or whether it affects the professional activity as such. In the case of incapacity for work that is merely job-related, lower requirements are to be placed on the employer under public law because the employee is not prevented from finding another job (on the whole: judgment WKL.2019.3, E. 2.3.2).

It was undisputed in the facts of the case under review that the applicable blocking period of 90 days pursuant to § 7 para. 1 PersG in conjunction with Art. Art. 336c para. 1 lit. b OR had been complied with due to the employee's illness. However, the latter claimed that in cases of illness, a lack of suitability could only be assumed if this condition lasted for a longer period of time, which was not the case before the expiry of two years since the beginning of an incapacity for work due to illness. The Administrative Court rejects this view. It states the following in this regard (E. 2.4.3):

"Insofar as the plaintiff claims that before the expiry of two years since the beginning of an incapacity for work, the long-term nature of an illness with a resulting lack of suitability cannot normally be assumed, he cannot be followed. (...) Cantonal law - just as little as federal personnel law (...) - does not define which specific duration of illness is to be considered an appropriate period. Also, there is no corresponding cantonal practice according to which the lack of suitability could only be assumed after at least two years of illness-related incapacity to work. (...) Namely, the public employer also has a legitimate interest in not having to operate permanently with temporary substitute and transitional solutions, but to sooner or later get operations back on an orderly track in the event of an absence due to illness. Since the two-year 'standard period' propagated by the plaintiff does not exist in cantonal law, the only decisive factor for the assumption of a lack of suitability is that the incapacity to work due to illness lasts for a longer period of time and an improvement of the health condition within a reasonable period of time is not foreseeable."

3. conclusion

The considerations of the administrative court are to be agreed with. A fixed time limit for the assumption of a lack of suitability in case of illness would require a legal basis, which, however, does not exist with regard to the PersG. However, the ruling does not mean that the employer under public law has no duty to clarify the possible return of the employee affected by the illness. In the present judgment, the Administrative Court also assessed the employee's medical history in detail and came to the conclusion that a return to work could not be expected within a reasonable period of time. Since the course of illness and recovery is per se individual, only the examination of the individual case carried out by the administrative court can allow a conclusion to be drawn regarding the lack of suitability due to illness.

Although the ruling was issued in application of cantonal personnel law, it also has implications for municipal practice because municipal personnel regulations generally provide for comparable grounds for termination as cantonal law.