Düsseldorf Labour Court, 20.12.2011, Ref.: 7 Ca 7251/11
The applicability of the Dismissal Protection Act depends on the length of service of the employee on the one hand and the size of the company on the other.
a) Length of service
Pursuant to Section 1 (1) KSchG, employees only enjoy protection under the KSchG if they have worked in the same business or company for more than six months without interruption:
§ Section 1 (1) KSchG:
The termination of an employment relationship with an employee whose employment relationship has existed in the same business or company for more than six months without interruption is legally invalid if it is socially unjustified.
b) Company size
A further prerequisite for the applicability of the KSchG is the size of the company, as small companies should not be covered by the Dismissal Protection Act according to the intention of the legislator.
Pursuant to Section 23 (1) KSchG, small companies are companies that generally only employ ten or fewer employees.
For employment relationships that began before 1 January 2004, however, the limit of generally five employees still applies.
§ Section 23 (1) KSchG:
With the exception of Sections 4 to 7 and Section 13 (1) sentences 1 and 2, the provisions of Section 1 shall not apply to companies and administrations in which, as a rule, five or fewer employees are employed, excluding those employed for their vocational training.
In companies and administrations in which, as a rule, ten or fewer employees are employed, excluding those employed for their vocational training, the provisions of the first section, with the exception of §§ 4 to 7 and § 13 para. 1 sentences 1 and 2, shall not apply to employees whose employment relationship began after 31 December 2003; these employees shall not be taken into account when determining the number of employees employed in accordance with sentence 2 up to the employment of ten employees as a rule. When determining the number of employees employed in accordance with sentences 2 and 3, part-time employees with a regular weekly working time of no more than 20 hours shall be taken into account with 0.5 and no more than 30 hours with 0.75.
However, even if the KSchG is not applicable due to the size of the respective company or the employee's length of service, the employee is not at the mercy of the employer.
In this respect, the termination may violate Section 242 BGB and therefore be null and void if the employer has exercised the right of termination during the probationary period in breach of morality or good faith.
When determining the content and limits of protection against dismissal outside the Dismissal Protection Act, the significance of fundamental rights protection obligations must be taken into account.
Within the framework of the general clauses (Sections 242, 138 BGB), the objective content of the fundamental rights, in particular Article 12 (1) GG (fundamental right to freedom of occupation), must also be taken into account.
The circumstances of the individual case are decisive here. From a factual perspective, the aim is to protect employees from arbitrary dismissals or dismissals based on irrelevant motives, e.g. from discrimination within the meaning of Art. Art. 3 para. 3 GG.
This also applies to terminations within the waiting period of Section 1 (1) KSchG.
Typical offences of unfair dismissal include abuse of rights and discrimination. The burden of presentation and proof for the existence of the facts from which the unfairness arises lies with the employee.
In the above-mentioned decision by the Düsseldorf Labour Court, the court had to decide whether a severely disabled administrative assistant could be dismissed during the probationary period because the employer was of the opinion that the training could only be carried out with disproportionate effort.
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Facts of the case and cancellation of the training contract
The plaintiff began training as an administrative assistant at the defendant city on 1 August 2010. At the time the training began, the plaintiff was recognised as a severely disabled person. Within the agreed probationary period of three months, the city terminated the training relationship on 27 October 2010, with the consent of the representative body for severely disabled employees and the staff council. The city argued that, due to his disability, the plaintiff would not be able to successfully complete the training programme without constant supervision and guidance from a special needs teacher. This measure was categorised as disproportionate.
Complaint and argumentation of the plaintiff
The plaintiff filed a lawsuit and claimed that the dismissal was legally inadmissible, as he could have successfully completed the training with the support of a work assistant or job coaching. He pointed out that the city had not taken the necessary measures to enable him to successfully complete his training. The plaintiff rejected the city's assertion that permanent special educational support was not feasible for cost reasons and referred to the possibility of using cost-neutral support services offered by the Federal Employment Agency.
Decision of the Düsseldorf Labour Court
The Düsseldorf Labour Court ruled in favour of the plaintiff and upheld the action for unfair dismissal. The court found that the dismissal violated Section 242 of the German Civil Code (BGB) (good faith) and was therefore invalid. The plaintiff had been discriminated against due to his severe disability, which meant that the protection against discrimination under the General Equal Treatment Act (AGG) applied. The defendant city was unable to prove that it had taken all necessary and reasonable measures to enable the plaintiff to successfully complete the training programme.
Appeal by the defendant city
The defendant city appealed against the judgement. The court pointed out that alternative forms of support such as job coaching and work training exist, which can usually be funded by the Federal Employment Agency. This emphasises the need to make appropriate arrangements to enable people with disabilities to access training and work.
Source: Düsseldorf Labour Court
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