In its ruling of February 22, 2023 (Case No. 6 Sa 131/22), the Rhineland-Palatinate Regional Labor Court decided that the mere acquisition of shares in a company and the exercise of control are not sufficient to constitute a transfer of an undertaking pursuant to Section 613a BGB. Since in such a constellation there is no change in the owner of the business, the requirements for a transfer of business are not met.
1. facts
The plaintiff employee was employed by the company A-GmbH since 2013 on the basis of a written employment contract as Sales Manager. A-GmbH had already been operating under the company B (= defendant employer) since 2017. The sole shareholder of the B company was a B-Limited, whose shares were acquired by C-Inc., the parent company of the defendant, in February 2021. In June 2021, the employer's company name was registered in the Commercial Register (with the registered office remaining the same). As of July 2021, the plaintiff-employee received his settlements from the defendant-employer. The defendant also terminated the employment relationship as of Feb. 28, 2022, claiming that it was not terminated due to the transfer of the business. The plaintiff employee, on the other hand, is of the opinion that the termination is invalid due to Sec. 613a (4) BGB. In addition, he was not properly informed about the transfer of the business.
The Labor Court dismissed the employee's action for protection against dismissal. This ruling was confirmed by the Regional Labor Court in the decision discussed here.
Decision 2
In the opinion of the Regional Labor Court, the notice of termination given is effective. In particular, it does not fail to comply with Sec. 613a (4) BGB. In the view of the Regional Labor Court, the notice of termination was not given due to a transfer of business.
For a transfer of an undertaking it is always necessary that the legal personality of the owner of the undertaking changes. However, if the legal subject of the business owner remains identical, the requirements for a transfer of business are not met. A mere change of shareholders is not detrimental. This does not affect the identity of the company. A mere change of shareholders therefore does not lead to a transfer of business (cf. BAG, ruling dated August 14, 2007, ref. 8 AZR 803/06). Thus, the mere acquisition of shares in a company and the exercise of control over this company by another company is irrelevant with regard to a possible transfer of an undertaking. Rather, a "transfer" requires the takeover by a new employer.
This was not the case in the case to be decided. The plaintiff employee had not presented any circumstances other than the change of shareholder which led to the assumption of a transfer of business pursuant to Sec. 613a BGB. The action was therefore to be dismissed.
3. conclusion
Even if this case is convincing in its outcome. Circumstances with possible transfer of business scenarios always require a very precise examination. But even this examination does not protect against unjustified lawsuits before the labor courts in individual cases - as seen here.
