Regional Labour Court Düsseldorf, 11.11.2013, Ref.: 9 Sa 469/13
Sections 33-43 SGB IX contain regulations that are intended to promote the gainful employment of disabled people. According to Section 33 I SGB IX, the necessary benefits for participation in working life are provided in order to maintain, improve, establish or restore the earning capacity of disabled people or people at risk of disability in accordance with their capabilities and to ensure their participation in working life in the long term if possible. According to Section 39 SGB IX, this includes services in recognised workshops for people with disabilities (Section 136 SGB IX).
The workshop for people with disabilities who, due to the nature or severity of their disability, cannot, cannot yet or cannot yet be employed on the general labour market, is intended to integrate these people into working life.
Disabled people who do not fulfil the requirements for employment in a workshop should be cared for and supported in facilities, so-called support areas, or groups that are affiliated to the workshop in accordance with Section 136 (3) SGB IX.
A distinction must therefore be made between the so-called workshop area and the support area. The distinction is important for the effectiveness of the termination of the contractual relationship.
In the above-mentioned judgement, the Düsseldorf Regional Labour Court had to decide whether a workshop contract exists and what conditions must be met for its termination.
Facts of the Court Case
The termination of the contractual relationship between the parties was in dispute between the parties
The defendant operated several workshops for disabled people and was recognised as an institution for the integration of disabled adults into working life pursuant to Section 138 SGB IX.
Plaintiff was severely disabled at 100%
The plaintiff was recognised as a severely disabled person with a degree of disability of 100 %. He suffered from a rare chromosomal disorder in the form of Smith-Magenis syndrome. His mental capacity was limited and his motor development delayed.
The plaintiff had initially been employed in the workshop for the disabled since 1 November 2005. Due to his limited employability, he was not placed in the workshop but in the "support area" of the defendant. However, he had also carried out actual activities there, such as shredding and testing chimney starters. His average monthly income amounted to € 101.50.
According to the wording of the workshop contract, it could be terminated if the requirements for admission to the workshop were no longer met. In particular, it could be terminated without notice in the event of considerable danger to oneself or others.
Plaintiff has repeated outbursts of anger
The first three years of employment were relatively unproblematic. Since the end of 2008, the plaintiff has increasingly thrown tantrums. These were initially only directed at things. Later, there were insults and threats towards other severely disabled employees and carers and finally even physical assaults.
Defendant cancels the tenancy
The defendant released the plaintiff on 17 October 2012 and terminated the workshop relationship with effect from 30 November 2012 in a letter dated 28 November 2012.
The plaintiff then brought an action before the Oberhausen Labour Court, which ruled that the dismissal was invalid on formal grounds. The defendant lodged an appeal against this.
Decision of the Düsseldorf Regional Labour Court
The LAG Düsseldorf followed the view of the defendant and now ruled that the workshop relationship had been terminated by the defendant's termination of 28 November 2012 with the approval of the expert committee on 5 December 2012. The termination was materially effective. However, according to the provision in the workshop contract, the notice of termination could only take effect on 5 December 2012 because the approval of the expert committee had only been given at this time.
The interpretation of the contract concluded between the parties shows that there was a workshop relationship pursuant to Section 138 (1) SGB, which related to employment in a workshop pursuant to Section 136 (1) and (2) SGB IX. In addition to the work performance, psychosocial services and medical and nursing care were also provided there for the disabled person.
Court rules that the plaintiff is not fit for work
The plaintiff is not a person who is not capable of working. This is to be assumed if, despite appropriate care, a considerable risk to himself or others is to be expected or if the extent of care and support would not have allowed participation in the vocational training programme in the long term.
Furthermore, it follows from the interpretation of the contract that the employment is not a special "support area" in accordance with Section 136 (3) SGB IX, which is aimed at disabled people who do not fulfil the admission requirements in accordance with Section 137 SGB IX. These people are a separate facility from the workshop. The people cared for there are not persons similar to those in work. Even if the claimant was assigned to the "support area", this was not the area within the meaning of Section 136 para. 3 SGB IX, but a special area of the workshop. Furthermore, the plaintiff had performed productive work and received remuneration for his work.
The dismissal was not void pursuant to Section 134 BGB in conjunction with Section 85 SGB IX. As a severely disabled person, the plaintiff enjoys special protection against dismissal in accordance with Section 85 SGB IX. However, this provision does not apply in the contract for work and labour relationship, as the interpretation of this provision shows that employee-like persons, such as the plaintiff, are not covered. This is supported by the wording on the one hand and the systematic position in Chapter 3 on the other, in which all other provisions deal with the employment relationship. However, the plaintiff was not in dependent employment as an employee, as the workshop contract focussed on care and nursing.
According to Section 626 (1) BGB, an employment relationship can be terminated for good cause without observing a notice period if there are facts on the basis of which the terminating party cannot reasonably be expected to continue the employment relationship until the end of the notice period, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract.
The important reason for the cancellation was the lack of workshop capability
An important reason here is the loss of the ability to work in a workshop. This requires that the disabled person is able to perform at least a minimum level of economically justifiable work and that he is capable of socialising. Since the end of 2008, the plaintiff had behaved to a considerable extent in a manner that endangered himself and others. In a number of cases, he had threatened to throw objects that posed a considerable danger. It should be noted that the aggression had increased and led to the plaintiff hitting another disabled person on the head with his fist.
It was not reasonable to continue to employ the plaintiff until the end of the notice period, despite his loss of workshop capacity, as he posed a considerable risk to the safety of the other disabled people and the carers.
The defendant was obliged to obtain the opinion of the expert committee before terminating the contract. In the event of termination without notice, this would be obtained retrospectively. The termination only becomes effective upon approval. The expert committee had given its approval on 5 December 2012, so that the termination could only take effect at that time.
Source: LAG Düsseldorf
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