The Rhineland-Palatinate State Labor Court decided in its judgment of February 22.02.2023, 6 (Az: 131 Sa 22/XNUMX) that the mere acquisition of shares in a company and the exercise of control are not sufficient to trigger a transfer of operations § 613a Civil Code to justify. Since there is no change in the owner of the business in such a situation, the requirements for a transfer of business are not met.
1. FACTS
The plaintiff employee had been employed by A-GmbH as a sales manager since 2013 on the basis of a written employment contract. A-GmbH had been operating under the name company B (= defendant employer) since 2017. The sole shareholder of the B company was a B-Limited, whose shares were acquired in February 2021 by C-Inc., the defendant's parent company. In June 2021, the employer's company was entered in the commercial register (with the same registered office). From July 2021, the plaintiff employee received his invoices from the defendant employer. The defendant also terminated the employment relationship on February 28.02.2022, XNUMX. She claimed that the termination was not due to the transfer of the business. The plaintiff employee, however, is of the opinion that the termination was due to Section 613a (4) BGB be ineffective. In addition, he was not properly informed about the transfer of operations.
The labor court dismissed the employee's dismissal protection claim. The State Labor Court confirmed this judgment with the decision discussed here.
2. DECISION
According to the State Labor Court, the termination notice is effective. In particular, it doesn't fail Section 613a (4) BGB. According to the State Labor Court, the termination was not due to a transfer of business.
For a business transfer, it is always necessary that the legal personality of the business owner changes. However, if the legal entity of the business owner remains the same, the conditions for a transfer of business are not met. A mere change of shareholders is harmless. Because this does not affect the identity of society. A mere change of shareholder therefore does not lead to a transfer of operations (see BAG, judgment of August 14.8.2007, 8, Ref: 803 AZR 06/XNUMX). The mere acquisition of company shares and the exercise of control over this company by another company are irrelevant with regard to a possible transfer of operations. Rather, a “transfer” requires a takeover by a new employer.
This was not the case in the case to be decided. Apart from the change of shareholder, the plaintiff employee did not present any circumstances that would lead to the assumption of a transfer of business § 613a Civil Code led. The lawsuit was therefore dismissed.
3. CONCLUSION
Even if this case is convincing in its results. Issues with possible business transfer scenarios always require very careful examination. But even this check does not protect against unjustified lawsuits before the labor courts in individual cases - as seen here.
