Regional Labour Court Berlin-Brandenburg, 07.02.2012, Ref.: 7 Sa 2164/11
The Federal Labour Court has already had to deal with the question of the permissibility of dismissals for operational reasons due to restructuring measures by the employer (outsourcing) on several occasions.
The following decisions are just a few examples.
Federal Labour Court, 26.09.2002, Ref.: 2 AZR 636/01
Facts of the Case In this case, the housekeeping assistant employed as a domestic help at a rheumatism clinic took legal action against her dismissal for operational reasons.
This cancellation was made because the clinic had decided to transfer the in-house kitchen and cleaning of the clinic to an external company.
The third-party company, however, was a service GmbH founded specifically for this purpose, in which the defendant clinic held the majority of the shares.
BAG: In this case, the BAG ruled that the decision to outsource would be subject to abuse control in this case.
Although the clinic's entrepreneurial decision is protected by Article 12 of the German Constitution (freedom of occupation), as soon as the employer uses the outsourcing of business divisions to circumvent the statutory regulations on protection against dismissal and the social selection actually required when dismissing the employees concerned, the entrepreneurial decision to outsource the part of the business is subject to abuse control by the labour courts.
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Federal Labour Court, 13.03.2008, Ref.: 2 AZR 2037/06
In this case, the parties disputed the validity of a dismissal for operational reasons against the plaintiff.
Facts of the Case The plaintiff had been employed by the company as a bill-poster ("Moskito-Anschläger") since 1997. In 2004, the defendant decided to have this activity carried out exclusively as a subcontractor in the future.
For this reason, the defendant terminated the employment relationship with the plaintiff in July 2004 with effect from 30 August 2004.
BAG: In this case, the BAG ruled that the company's decision to have certain activities carried out by subcontractors instead of its own employees in the future could justify an ordinary dismissal as an urgent operational requirement within the meaning of Section 1 II 2 KSchG, as outsourcing was a free entrepreneurial decision.
However, the new contractual relationships to be entered into must actually be those of freelance work and not just a pretence.
In the case mentioned above, the Berlin Brandenburg Regional Labour Court also had to decide on a dismissal due to restructuring measures.
Facts of the Case In this case, the defendant company had undertaken restructuring measures and, among other things, made the entrepreneurial decision to no longer carry out the cleaning work itself but to outsource it.
The cleaning staff, who could no longer be dismissed under the collective labour agreement, were then dismissed without notice. The action for unfair dismissal was directed against this.
LAG Berlin-Brandenburg: The Regional Labour Court declared the extraordinary dismissals invalid. As with other contracts, the defendant could not simply renounce its contractual obligation towards the employees, but had to take the fact that the cleaning staff could not be dismissed into account when drawing up its business concept.
The defendant had not presented any further circumstances that the outsourcing of the cleaning work to third parties was unavoidable from a business point of view.
Source: Regional Labor Court Berlin-Brandenburg
Source: Federal Labor Court
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