Federal Labor Court, May 23, 2013, 2 AZR 991/11
An employee can file a lawsuit for protection against dismissal with the labor court in response to their termination by the employer.
However, in order for the dismissal not to become legally binding, the lawsuit must be filed with the relevant labor court within three weeks of receiving the notice of termination, according to § 4 of the Protection Against Unfair Dismissal Act (KSchG).
After the deadline, the dismissal becomes legally binding and can no longer be contested. This means the employment relationship is irrevocably terminated at the end of the notice period.
If a severely disabled employee is to be dismissed, the employer must also obtain approval from the Integration Office.
This approval can also be contested by the employee. First, the disabled employee may file an objection. If the authority does not change its decision (remedy), the respective objection committee will decide on the objection.
If the objection committee also rules against the employee, the employee can file a lawsuit against the decision in the administrative court.
This results in a bifurcation of legal recourse in such two-stage decisions. The Federal Labor Court had to rule on such a case in the above-mentioned judgment.
Facts of the legal case:
The plaintiff was employed as an electrician by the defendant and had a 60% disability.
The plaintiff had been employed by the defendant as an electrician since 1992. He was recognized as a severely disabled person with a disability degree of 60 and was also a member of the staff council elected for the “Culture/Environment” department.
In April 2008, a local press article claimed that the head of the department where the plaintiff worked had a pronounced self-service mentality, as garden furniture was allegedly made for him personally in the company’s carpentry shop.
The plaintiff had provided information for a negative article about the boss.
The plaintiff was personally named as the informant in the article. When questioned by the defendant, the plaintiff admitted that he had spoken to the investigating journalist.
In May 2008, the defendant applied to the Integration Office for approval of an extraordinary dismissal, alternatively on grounds of suspicion. This approval was granted to the defendant by the Integration Office on June 6, 2008.
On the same day, after approval from the staff council and the overall staff council, the defendant dismissed the plaintiff without notice.
After being dismissed without notice, the plaintiff filed a lawsuit for protection against dismissal.
The plaintiff filed a timely lawsuit for protection against dismissal and simultaneously objected to the approval notice from the Integration Office.
The objection to the approval notice was rejected by the objection committee, and the plaintiff subsequently filed an appeal with the administrative court.
By judgment of June 24, 2010, the administrative court overturned the approval notice in the form of the objection decision. The Higher Administrative Court allowed an appeal against this decision.
Regarding the dismissal, the plaintiff argued before the labor court that his statements to the press were truthful, as furniture had been built and sold for private purposes in the carpentry shop for years with the knowledge and approval of the department head.
Furthermore, the department head had had private homes of family members renovated by the defendant’s employees. In addition, there was no valid approval notice from the Integration Office, according to the administrative court’s ruling.
Labor court dismissed the lawsuit, but the regional labor court ruled in favor of the plaintiff.
The labor court initially dismissed the lawsuit, while the regional labor court, considering the pending administrative court proceedings, suspended the case.
After the administrative court’s decision, the regional labor court resumed the proceedings and ruled in favor of the plaintiff.
The defendant then filed an appeal with the Federal Labor Court.
With a final judgment on January 28, 2013, the Higher Administrative Court overturned the administrative court’s ruling regarding the approval notice and dismissed the plaintiff’s appeal.
Federal Labor Court judgment:
Federal Labor Court ruled in favor of the employer.
The BAG followed the defendant’s position, stating that the regional labor court should not have deemed the extraordinary dismissal invalid based on its previous findings.
The regional labor court had ruled the dismissal invalid because, at the time of its final oral hearing, valid approval from the Integration Office was no longer in effect. According to the regional labor court, this was true even though the administrative court’s decision to overturn the approval notice was not yet final, as the decision had at least temporarily annulled the effect of the notice. The regional labor court also deemed it unreasonable for the plaintiff to endure a continued suspension of the current proceedings due to the principle of expedited proceedings in labor courts. It argued that the defendant would have sufficient protection through a restitution claim in the event of a favorable administrative court ruling.
The Federal Labor Court did not follow the reasoning of the regional labor court:
The decision of the regional labor court already constituted a legal error under § 561 ZPO, as it was now legally established by the Higher Administrative Court’s ruling that the Integration Office was entitled to approve the dismissal. Therefore, the lawsuit could no longer be upheld on the grounds that no valid approval notice had been in place.
While new facts are generally not to be considered at the appellate level, an exception applies if such facts would otherwise give rise to grounds for reopening the case. The appellate court must not issue a ruling that would be immediately overturned by a restitution claim.
The Federal Labor Court also found that the regional labor court’s decision was legally flawed regardless of this development.
According to § 85 SGB IX, an employer’s dismissal of a severely disabled employee requires prior approval from the Integration Office.
This applies without restriction to extraordinary dismissals under § 91(1) SGB IX. A dismissal without valid approval is null and void under § 134 BGB.
The required approval from the Integration Office had been granted before the dismissal.
In the dispute, the Integration Office had granted the necessary approval before the declaration of dismissal. The defendant was thus authorized to terminate the employment relationship with the plaintiff.
Contrary to the regional labor court’s opinion, this effect of the approval notice was not temporarily removed by the administrative court’s annulment of the notice.
The regional labor court correctly acknowledged that labor courts are bound by the decisions of administrative bodies and courts regarding the validity of the approval. However, it erroneously assumed that the administrative court’s non-final annulment of the Integration Office’s approval notice had binding effect in labor court proceedings.
Under § 88(4) SGB IX, objections and appeals against the Integration Office’s approval do not have a suspensive effect. This means that the approval issued by the Integration Office remains valid unless and until it is overturned by a final decision.
The employer’s right to dismiss based on the approval notice is therefore unaffected by the fact that the approval might later be overturned by the objection committee or a court, as long as the decision is not final and binding.
Thus, the Federal Labor Court found that the regional labor court failed to examine whether there was a valid reason for the dismissal and remanded the case for further proceedings.
Source: Federal Labor Court
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