The Federal Labor Court has made a decision on the start of the two-week period that is very relevant for compliance departments in companies of Section 626 Paragraph 2 BGB pleases. With its ruling of May 5, 2022 (case number: 2 AZR 483/21), the court set out some important principles regarding comprehensive compliance investigations and the two-week deadline § 626 para. 2 BGB .
Compliance departments and labor lawyers who support them are regularly faced with the question of when exactly the two-week period begins. This is often not an easy question to answer, especially in complex situations with a lot of details, people or data. In this respect, the decision brings a significant amount of legal certainty here. However, it is also made clear that deliberately delaying the transfer of information does not lead to a delay in the deadline.
1. FACTS
In the proceedings, the parties disputed the effectiveness of termination without notice and, alternatively, extraordinary termination with a social expiry period. The defendant company operates in the defense and space sectors. In the past it has been a contractor for the Federal Ministry of Defense on several occasions. A compliance department has been set up at the defendant company. The department received a tip in 2018 that there were inconsistencies regarding planned procurement projects. The employer then commissioned an external law firm to investigate the matter and to fully clarify the matter. In mid-2019, the company decided to interrupt the investigation for the time being and to prepare the previous investigation results in an interim report. This should be handed over to management so that they can decide on any labor law measures that may need to be taken. As instructed, the law firm subsequently compiled the identified breaches of duty by the plaintiff and 88 other employees of the defendant. The report was handed over to the managing director on September 16.09.2019, 20.09.2019. The plaintiff responded to the allegations following a request from the defendant on September XNUMX, XNUMX.
The defendant employer terminated the employment relationship after hearing the responsible works council on September 27.09.2022, XNUMX, without notice and, alternatively, with a social expiry period (corresponding to the regular notice period).
The plaintiff defended himself against these dismissals with an action for protection against dismissal.
The lower courts had each upheld the dismissal protection lawsuit.
2. DECISION
The defendant company's appeal was successful. According to the parties' undisputed submissions, the defendant company had the two-week deadline § 626 para. 2 BGB in the case to be decided - contrary to the opinion of the lower courts.
The employer stated that it was only on September 16.09.2019, XNUMX that a person authorized to terminate the contract (here: management) became aware of the facts relevant to the termination. In this respect, it is also irrelevant for compliance with the deadline § 626 para. 2 BGBwhether the head of the compliance department had knowledge of the relevant facts at an earlier point in time. Because it is undisputed that he was not entitled to give notice of termination.
The state labor court's findings of fact also did not allow the conclusion that the company could act in good faith (§ 242 BGB) does not rely on compliance with the deadline. Such an inadmissible exercise of the right presupposes at least that the delay in obtaining knowledge by a person entitled to terminate the contract is based on improper organization. To do this, the person entitled to terminate the contract would have to have purposefully prevented the flow of information or at least created an inappropriate and unnecessary organizational risk that hindered the flow of information in a manner that was incompatible with good faith. However, this does not mean that the supervisor (head of the compliance department) is not authorized to terminate the contract at the same time.
3. CONCLUSION
Fortunately, the decision makes it clear that the knowledge of the management of a compliance department is not enough to meet the two-week deadline § 626 para. 2 BGB to set in motion. However, this assumes - which is usually the case in practice - that there is no right to terminate the contract. However, the decision also makes it clear that there is little scope for deliberately delaying the deadline through intentional or negligent late disclosure of information.
