In its decision of 01.12.2021, the Mannheim Labour Court confirmed the extraordinary termination without notice that the Walldorf-based company SAP had issued to the plaintiff, the chairperson of the works council (Ref.: 2 Ca 106/21). However, the decision is not yet legally binding.
1. the facts
The company had given the plaintiff works council member extraordinary notice of termination without notice under section 626 of the German Civil Code (Bürgerliches Gesetzbuch - BGB ), which was based, inter alia, on the following breaches of duty: The works council member had falsified internal minutes of works council meetings, altered emails and suppressed and removed them from the email inbox. The company had applied to the competent works council for consent to extraordinary dismissal under section 103 (1) of the Works Council Constitution Act (BetrVG ). The works council gave its consent.
Decision 2
The works council's appeal to the Federal Labour Court was also unsuccessful. The Second Chamber of the Mannheim Labour Court based its decision, among other things, on the fact that the violated duties were not purely official duties of a works council member. Rather, these duties affected every employee regardless of his or her membership in the works council. There was good cause for termination without notice under section 626 of the Civil Code. The complainant works council had manipulated data in a targeted manner and over a long period of time. The relationship of trust with the company was therefore permanently destroyed. The court could not identify any errors in the consent procedure under section 103 of the Works Council Constitution Act (BetrVG ). In addition, the two-week deadline of section 626 (2) of the German Civil Code (BGB ) had been complied with.
3 Conclusion and recommendations for action
The decision of the Mannheim Labour Court is consistent. The decisive factor is first the classification of the duties violated by the works council member: Do they belong to the general duties at work or to the duties of a works council? Only the violation of (also) general duties arising from the employment relationship can be answered by the employer with measures under labour law (warning, dismissal, etc.).
In this context, it is important to point out the procedure according to section 103 (1) of the Works Constitution Act (BetrVG). Because here, in practice, "complications" can quickly arise regarding compliance with the two-week period according to section 626 subsection 2 BGB:
A works council member enjoys special protection against dismissal under section 15 (1 ) of the Protection Against Dismissal Act ( KSchG ). The employer can only dismiss a works council member for good cause. In addition, under section 103(1) of the Works Council Constitution Act (BetrVG ), the employer must obtain the works council's prior consent to the dismissal. The works council now has three days (see section 102(2) sentence 3 BetrVG) to give its consent. If the works council gives its consent, the employer must give notice within the two-week period. If the employer does not give consent or remains silent, there is no fiction of consent. The employer must then (after the expiry of the three days) apply to the labour court for the replacement of the consent within the two-week period.
Also of interest in this context is the decision of the Baden-Württemberg Regional Labour Court on the liability of a works council for data protection violations.
