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BAG: Dismissal at request of works council

April 2017

It is possible for a works council to push through the dismissal of an employee, as demonstrated by a recent ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, from March 28, 2017 (Az.: 2 AZR 551/16).

The BAG held that if the courts grant the works council’s formal request vis-à-vis the employer to dismiss an employee, this fulfils the requirement for there to be an urgent operational need justifying the employee concerned being issued with ordinary notice of dismissal.

The case before the BAG was unusual in that the works council had requested that the employer transfer or dismiss a long-time employee of the company. This was justified with reference to what were apparently huge tensions between the woman in question and her work colleagues. While works councils typically advocate for the concerns and interest of the workforce, it is also possible for them to request that an employee be dismissed. Having said that, this can only happen under certain limited circumstances, such as when an employee seriously disrupts internal peace within the workplace on multiple occasions as a result of illegal conduct or a gross violation of the principles set out in sec. 75 para. 1 of the Betriebsverfassungsgesetz (BetrVG) [Works Constitution Act], especially in relation to racist or xenophobic acts. If the relevant labour court grants the works council’s request to transfer or dismiss the employee, the employer is then bound by this decision. If the employer nonetheless chooses not to follow the decision, it may have a financial penalty imposed against it.

In the instant case, the works council had requested that the employee be transferred or dismissed. The employer did not initially comply with the request. Following a decision-making process initiated by the works council, the competent labour court called on the employer to dismiss the employee. The employer subsequently issued both exceptional notice and, as an alternative, ordinary notice of dismissal.

The woman in question submitted an action for wrongful dismissal. However, she was only successful with respect to the exceptional notice of dismissal, with the Landesarbeitsgericht Düsseldorf (Regional Labour Court of Düsseldorf) ruling that the ordinary notice of dismissal had been issued effectively. The BAG confirmed the decision, stating that pursuant to the Labour Court’s final ruling, according to which the defendant had to dismiss the plaintiff, there had thus been an urgent operational need justifying ordinary notice of dismissal. That being said, the Court went on to say that the decision did not permit the employer to terminate the employment relationship without notice.

A lot of workplace legal disputes arise in relation to dismissals. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to employment law.

https://www.grprainer.com/en/legal-advice/employment-law.html

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