Solingen Labour Court, 10.05.2012, Ref.: 2 Ca 198/12
If an action for protection against dismissal is to be filed with the labour court, it must first be checked whether the Dismissal Protection Act is applicable. This depends on the length of service of the employee on the one hand and the size of the company on the other.
The second condition has been included in the Protection against Dismissal Act in particular so that small businesses are exempt from the strict requirements of the Protection against Dismissal Act.
Pursuant to Section 23 (1) KSchG, small companies are companies that generally only employ ten or fewer employees.
However, even employees in small companies or in the probationary period are not defenceless against the arbitrariness of their employer.
In its decision of 27 January 1998 - 1 BvL 15/87 (NZA 1998, 469ff.), the Federal Constitutional Court ruled on the constitutionality of the small business clause in § 23 KSchG to the effect that an employee is not unprotected against dismissal even in a small business and outside the applicability of the KSchG, but rather is protected by the general clauses of civil law against immoral or unfair dismissals.
According to the BVerfG, protection against the loss of the employment relationship through private disposition can be derived from Article 12 of the Basic Law.
According to the case law of the Federal Labour Court, a termination is immoral if the terminating employer has a reprehensible motive (e.g. vindictiveness or retaliation), or if the termination of the employment contract for other reasons is contrary to the sense of decency of all fair and just thinkers within the meaning of Section 138 BGB.
Termination of an employment contract in breach of good faith may occur in particular if the employer has violated the minimum level of social consideration in the termination.
For example, case law assumes that a dismissal is in breach of trust if the employer initially refrains from dismissing the employee and creates confidence in the employee that he will continue to be employed, but then dismisses the employee in a close temporal context (BAG, 25 November 1982, Ref.: 2 AZR 21/81; BAG, 25 February 1988, Ref.: 2 AZR 500/87); ArbG Hamburg, 11 May 1992, Ref.: 21 Ca 8/92).
In the above-mentioned decision, the Solingen Labour Court had to decide whether the dismissal of an employee during the probationary period (and thus outside the applicability of the Dismissal Protection Act) was in breach of trust because the employee had suffered an accident at work during the short period of his employment and thus there was a close connection between the accident and the dismissal.
[notice]If you have a labour law problem or are a party to a dismissal dispute, we will be happy to support you. Give us a call so that we can make you an offer. Either send us an email to info@mth-partner.de or call 0221 - 80187670.[/notice]
Facts of the Case:
Plaintiff lost 4 fingers in an accident at work during his probationary period
The plaintiff worked for the defendant as an industrial mechanic. His gross monthly salary was approximately € 2,000. The plaintiff was 42 years old and the defendant did not have a works council.
The plaintiff, who had initially worked for the defendant for a few days as part of a temporary employment relationship, had finally received a fixed-term employment contract with the defendant from 19 September 2011 up to and including 18 September 2012 in the so-called final scissor assembly.
About two months later, the plaintiff suffered an extremely serious and tragic accident at work in which four fingers were severed from his right hand.
Three of the four fingers could be attached to the hand, but the plaintiff was permanently missing his index finger. The details of how this serious work accident occurred were disputed between the parties, with the plaintiff suffering from partial memory gaps due to the shock event.
The accident was immediately reported by the defendant to the employers' liability insurance association, which had been investigating the circumstances of the accident since the accident was reported, but had not yet come to a conclusion. The plaintiff, for his part, had filed a criminal complaint "against unknown persons".
Nevertheless, the employer dismissed the plaintiff within the contractually agreed probationary period
The parties had agreed in the employment contract under Section 2 that the first six months of the employment relationship were deemed to be a probationary period, so that during the agreed probationary period the employment relationship could be terminated by either party with two weeks' notice in accordance with Section 622 (3) BGB.
On 25 January 2012, i.e. still within the waiting period and a good two months after the accident, the defendant gave the plaintiff notice of termination with effect from 9 February 2012.
The plaintiff filed an action for unfair dismissal against the dismissal
The plaintiff filed an action against this termination on the grounds that the termination was in breach of trust due to the temporal connection with the accident.
Judgement of the Solingen Labour Court
The Solingen Labour Court did not agree with the plaintiff's view.
The Solingen Labour Court did not consider the dismissal to be immoral
The cancellation did not violate § 138 BGB, as it was not immoral in the first instance.
It would only have been immoral if it had been based on a reprehensible motive on the part of the defendant, such as vindictiveness, or if it otherwise contradicted the sense of decency of all fair and just-minded people (BAG, 14 February 2004, 9 AZR 23/04).
This was not the case here. The defendant had given notice of termination a good two months after the accident at work.
Employer had argued that the plaintiff was not a team player
The defendant argued that the plaintiff had already proved to be unable to work in a team in the first two months of the employment relationship.
In this respect, the defendant had already decided to terminate the probationary period in November, i.e. even before the accident at work. Only the terrible accident at work had led to the plaintiff initially being spared dismissal.
In this respect, the plaintiff had also failed to fulfil his burden of presentation and proof and had not presented any facts according to which the defendant's motive appeared to be immoral.
The dismissal was also not in breach of trust pursuant to Section 242 BGB. In the case of a dismissal to which the Dismissal Protection Act does not (yet) apply due to non-fulfilment of the waiting period, the second and sixth senates of the Federal Labour Court refer to Article 2 (2) of the German Basic Law, in the light of which Section 242 BGB must be interpreted and applied.
Termination is also not in breach of trust
Accordingly, the employee is also entitled to protection against unfair dismissal outside the scope of the Protection against Dismissal Act.
However, the protection provided by this should not lead to the employer being subject to the standards of social unlawfulness stipulated in the Dismissal Protection Act outside of the Dismissal Protection Act (LAG Baden-Württemberg, 5 July 2011, 22 SA 11/11).
In this respect, a dismissal is not in breach of trust simply because it is given in connection with an incapacity to work or an accident at work (LAG Schleswig-Holstein, 27 May 2009, 3 Sa 74/09).
Source: Solingen Labour Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
One Response
Dear Sir or Madam
I had an accident at work in October 2014 and was made redundant.
The employment contract was signed on 22/04/2014. The probationary period would have ended on 22 October 2014. Unfortunately, due to all the excitement, I completely forgot the exact date, as mentioned in the sentence above.
I filed a complaint with the labour court in Trier and there was no hearing on how the dismissal came about in the first place. As a result, my lawyer returned the complaint.
How do you still proceed?
With kind regards
Beeck