Labour law: Transfer abroad and dismissal - LAG Cologne draws clear boundaries

Regional Labour Court Cologne, 26.01.2023, Ref. 8 Sa 473/22

The decision of the Cologne Regional Labour Court (LAG) of 26 January 2023 (Ref. 8 Sa 473/22) concerns several key issues of labour law: Transfer abroad labour lawThe following issues are addressed in this context: the limits of the right to give instructions, requirements for dismissals with notice of change and the validity of dismissals due to allegedly false accusations.

For employers and employees, the judgement is a textbook case of when instructions are invalid and when dismissals are not valid in court.

The facts of the case: From executive to counter in Istanbul

The plaintiff, who has been employed by a partly state-owned Turkish airline since 2010, most recently earned Operations and sales manager in Cologne around 6,833 euros gross.

Two drastic directives were issued at the beginning of 2020:

1. 06 January 2020Transfer to the Airport counter Cologne/Bonn as a clerk - a significantly lower-paid job.

2. 24 February 2020Transfer from 01 March 2020 as a case officer to Istanbul, with only six days to decide.

The plaintiff rejected both transfers. A short time later, the employer dismissed him without notice and, alternatively, dismissed him with notice. Allegation: The plaintiff had unjustly accused his superior of assault and insult.

The decision of the LAG Cologne

The court ruled in favour of the plaintiff on key points:

1. Transfers ineffective

   • DowngradingThe transfer to the counter was a clear deterioration of the position. This no longer falls under the right of direction (§ 106 GewO), but requires a Change notice according to § 2 KSchG.

   • Transfer abroadThe instruction to move to Istanbul failed due to the lack of a weighing of interests (Section 315 BGB, equitable discretion). The court took particular account of the plaintiff's centre of life in Germany, his wife's civil service status and the child's compulsory schooling.

2. Cancellations ineffective

   • Applicable was German dismissal protection law (§ 1 KSchG), although the employment contract provided for Turkish law - reason: Favourability comparison pursuant to Art. 8 Rome I Regulation.

   • The employer was unable to prove that the plaintiff's accusations were deliberately false. According to Section 626 BGB and the distribution of the burden of proof in dismissal protection proceedings, this was to his detriment.

3. Application for dissolution rejected

   • § Section 9 KSchG only permits cancellation for valid reasons that make further cooperation unreasonable. The mere assertion of false accusations that could not be proven is not sufficient.

Legal basis at a glance

• Right of direction (§ 106 GewO): Employers may determine the content, place and time of work performance at their reasonable discretion - but only within the scope of the employment contract and without significantly worsening the working conditions.

• Equitable discretion (§ 315 BGB): The interests of employees and employers must be carefully weighed against each other.

• Change notice (§ 2 KSchG): Necessary if an instruction leads to a significant change in activity or remuneration.

• Protection against dismissal (§ 1 KSchG): Dismissals must be socially justified - for personal, behavioural or operational reasons.

• Termination without notice (§ 626 BGB): Only in the case of serious breaches of duty, notice period of two weeks from knowledge of the reason for termination.

• Rome I Regulation Art. 8: Choice of law must not result in the employee being deprived of the protection of mandatory provisions of the normally applicable law.

What does the judgement mean in practice?

For employees:

• Check every transfer carefully - especially abroad or in the event of downgrading.

• Defend yourself in good time against unreasonable instructions (Section 315 BGB).

• Document all relevant circumstances to strengthen your position in the process.

For employers:

• Only order foreign deployments after careful consideration of interests and a clear contractual basis.

• Significant downgrades only via notice of change - otherwise there is a risk of invalidity.

• Reasons for dismissal must be proven; mere suspicion is not sufficient.

Conclusion

The judgement of the LAG Cologne makes this clear: Transfer abroad labour law is legally complex. Employers are not allowed to order drastic changes of location or activity based solely on their company policy. Employees have strong rights in such situations, which they should utilise consistently.

You can find out more about your rights in the event of transfers, protection against dismissal and the limits of the right to issue instructions on our page Labour law in Cologne.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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