The Hamm Regional Labor Court has once again made it clear with its judgment of September 8.9.2023, 13 (Az: 20 Sa 23/XNUMX) that the employer's obligation to provide substantiation in the event of termination during the waiting period is not based on the objective reasons of the not yet applicable § 1 KSchG to be measured. Rather, it is sufficient if the employer states the reasons from which he subjectively bases his decision to terminate the contract.
1. FACTS
The plaintiff employee had been employed by the defendant company as a salesperson since March 2022. The employment contract provided for a probationary period of three months.
After the probationary period had expired but before the waiting period under the Dismissal Protection Act had expired, the employer consulted the works council about the intended termination of the plaintiff's employment. In its justification, the company stated: “The KSchG does not yet apply to the employment relationship. Continuing the employment relationship is not in our interest.”
The works council commented on the hearing. As a result, the employer terminated the employment relationship on September 30.09.2022, XNUMX. The plaintiff employee was of the opinion that the termination was in accordance with. § 102 BetrVG as ineffective. The termination hearing was therefore ineffective because no reasons were given.
The labor court dismissed the dismissal protection claim. The State Labor Court confirmed this decision with the judgment discussed here.
2. DECISION
In the opinion of the LAG Hamm, the termination notice was effective. She ended the employment relationship on September 30.09.2022, XNUMX. The court initially stated that the plaintiff employee was seeking protection § 1 KSchG haven't purchased yet. Because the employment relationship had not existed for 6 months. The dismissal in question therefore did not require any social justification Section 1 Paragraph 1, Paragraph 2 and Paragraph 3 KSchG. Furthermore, the termination was not due to a violation of Section 102 Paragraph 1 BetrVG ineffective due to incorrect works council hearing.
The works council must be heard before everyone - and therefore also before a waiting period notice is given. However, in the case of termination during the waiting period, the employer's obligation to substantiate is not based on the objective characteristics of the reasons for termination, which are not yet applicable § 1 KSchG to be measured, but rather solely by the circumstances from which the person subjectively derives his decision to terminate. This follows from the principle of subjective determination.
The hearing at issue here fully meets these requirements. In particular, the works council should not be informed of any preliminary considerations that led to the decision to terminate the contract.
3. CONCLUSION
The decision is convincing and is in line with the Federal Labor Court. The Federal Labor Court had already stated in a ruling from 2013 (September 12.09.2013, 6, Ref: 121 AZR 13/XNUMX) that this brief justification was sufficient in a waiting period employment relationship. Employers should make sure that they actually stick to this brief justification. Because as soon as reasons are given, the requirements change.
