Federal Labour Court, 21.11.2013, Ref.: 6 AZR 979/11
Both parties, i.e. both the plaintiff and the defendant, must establish and observe the respective substantive legitimacy of the other party in the context of each action.
Material legitimisation refers to the substantive ownership of the respective party with regard to the right asserted in the action.
The plaintiff's substantive legitimisation is referred to as active legitimisation, as the plaintiff plays the "active" role in the action. The defendant's substantive legitimisation is referred to as passive legitimisation, as the defendant plays the "passive" role here.
In certain cases, however, it can be difficult for the plaintiff to establish the defendant's legitimisation and thus the correct addressee for the action.
Such a constellation may exist, for example, when filing an action for unfair dismissal against a company if insolvency proceedings have been initiated against the company's assets.
In principle, the opening of insolvency proceedings has no influence on the continued application of general labour law.
Pursuant to Section 108 (1) InsO, the existence and content of the employment relationship remain unaffected.
However, pursuant to Section 80 (1) InsO, the insolvency administrator assumes the role of employer by operation of law when insolvency proceedings are opened.
The rights and obligations arising from the employment relationship are thus transferred to the insolvency administrator, so that an action for protection against dismissal must then generally be brought against the insolvency administrator in his capacity as a party by virtue of his office, even if the dismissal was declared by the insolvency debtor, i.e. the insolvent company.
In the Federal Labour Court case mentioned above, the court had to decide whether the insolvency administrator was the correct addressee of the action for protection against dismissal, although the latter had released the self-employed activity carried out by the insolvent sole proprietor from the insolvency estate in accordance with Section 35 (2) InsO and returned it to him.
Facts of the Case The plaintiff in this action for unfair dismissal had been employed as a driver by the debtor, who ran a courier and small transport business as a sole trader, since 6 May 2010.
On 15 May 2010, the debtor terminated the employment relationship with the plaintiff for cause. Five days later, i.e. on 20 May 2010, insolvency proceedings were opened and the defendant was appointed insolvency administrator.
One day later, the defendant declared to the debtor that he was releasing his self-employed activity from the insolvency estate in accordance with Section 35 (2) InsO.
On 1 June 2010, the plaintiff filed an action for unfair dismissal with the competent labour court, seeking a declaration from the insolvency administrator that the employment relationship had not been terminated without notice but with due notice.
The labour court initially upheld the claim. The Regional Labour Court dismissed the action and allowed an appeal.
Federal Labour Court: The BAG ruled in line with the Regional Labour Court that the insolvency administrator did not have the corresponding passive legitimacy for the action for protection against dismissal.
Although the power of administration and disposal pursuant to Section 80 (1) InsO was initially transferred by law to the insolvency administrator upon the opening of the insolvency proceedings, since the debtor (the sole proprietor) had exercised a self-employed activity after the opening of the insolvency proceedings and the insolvency administrator had released this from the insolvency estate pursuant to Section 35 (2) InsO, the power of administration and disposal also returned to the debtor with regard to the employment relationships already established at this time when the declaration of release took effect.
From this point onwards, the debtor and no longer the insolvency administrator was again passively legitimised to file an action for protection against dismissal.
Source: Federal Labor Court
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