In its judgment of February 29.02.2024, 8 (ref. 187 AZR 23/XNUMX), the Federal Labor Court decided on the risk of institutional abuse of rights in the case of chain fixed-term contracts by public employers. According to this, public employers may take into account the risk of a lawsuit for the control of a fixed-term contract when filling a position by only including applicants in the selection for a position to be filled on a temporary basis for whom there is no obvious possibility that a further substantive limitation of the employment relationship would meet the requirements of an institutional abuse of rights.
1. FACTS
The parties dispute whether the defendant is obliged to fill the position of technical assistant at the Institute of Pathology that he advertised at the J-University W (hereinafter: university) with the plaintiff.
The severely disabled plaintiff was initially employed at the University Hospital W (hereinafter referred to as the University Hospital) from April 19, 2010 to March 31, 2016 on the basis of a total of seven fixed-term employment contracts. He has been employed with the defendant at the university since April 1, 2016 on the basis of an employment contract initially limited to June 30, 2019. In an amendment agreement dated June 12, 2019, the parties temporarily extended the employment relationship with the university until June 30, 2023. The parties are disputing the effectiveness of this final limitation of the employment relationship in separate proceedings.
In January 2022, the defendant advertised a position for a technical assistant at the Institute of Pathology at the University for internal and external applicants. According to the advertisement, the position was limited to two years with the option of a contract extension. The plaintiff applied for this position and the head of the Pathological Institute requested that the plaintiff be transferred to the human resources department. The human resources department rejected the plaintiff's request for reassignment. She explained that due to the previous employment periods, a further fixed-term employment relationship at the university was no longer reasonable.
The plaintiff was of the opinion that his claim to the coveted position follows Art. 33 Para. 2 GG, as he was the most suitable applicant. The defendant is prevented from relying on the long duration of the fixed-term contracts that have already taken place. He could not successfully claim that the employment relationship with him could no longer be effectively limited because such a chain limitation could be ineffective due to institutional abuse of rights. The case law on institutional abuse of rights serves to restrict fixed-term contracts in order to protect the affected employees. The fact that a further fixed-term contract may be ineffective due to abuse of law cannot be argued against him, so that he is denied the desired position in violation of Art. 33 Para. 2 GG will not be transferred.
The labor court dismissed the lawsuit, which was aimed at ordering the defendant to fill the position of “technical assistant” at the Institute of Pathology with the plaintiff. The Nuremberg Regional Labor Court rejected the plaintiff's appeal. The plaintiff's appeal before the Federal Labor Court was also unsuccessful.
2. DECISION
According to the BAG, there is no entitlement to transfer of the coveted position Art. 33 Para. 2 GG. It remains to be seen whether the plaintiff is the most suitable applicant for the position of technical assistant at the Institute of Pathology. According to the BAG, the defendant was allowed to decide, within the scope of his freedom of organization, to only advertise the position to be filled for a limited period of time and, as part of this organizational decision, to also exclude the plaintiff from selection for the advertised position. The defendant is not obliged to conclude another fixed-term employment relationship with the plaintiff because there is an obvious possibility that the fixed-term contract would be ineffective due to institutional abuse of rights.
The decision to only fill the advertised position on a temporary basis and to exclude from the selection process applicants whose further time limit poses a risk of institutional abuse of rights is part of the selection process Art. 33 Para. 2 GG upstream organizational decision and also broad organizational discretion.
In the opinion of the BAG, public employers would not have to take on any additional risk in the event of a fixed-term contract that goes beyond that Section 14 Paragraph 1 TzBfG Typical uncertainty goes beyond whether the factual reason proves to be given in the context of an action for the control of the time limit. In the case of a fixed-term contract, the public employer is not obliged to exercise its organizational discretion in a way that exposes it to accusations of institutional abuse of rights. The group of people for whom there is an obvious possibility of legal abuse can be clearly defined based on the total duration of the fixed-term employment contracts or the number of extensions. If public employers were obliged to include applicants from this group in the selection for a fixed-term position, they would have to expose themselves to the clearly recognizable risk of institutionally abusing the law, with the result that the actually effective fixed-term contract would be ineffective.
3. CONCLUSION
The decision of the Federal Labor Court is exciting. It concerns the special case of Art. 33 Para. 2 GGwith public employers. It is to be welcomed that the BAG makes it clear that applicants who are at risk of an inadmissible fixed-term contract due to previous contracts can be excluded from the application process. This means that public employers are not forced to act illegally.
