Notification of collective redundancies – The devil is in the details

Created by Ralf Pelz | |  Labor Law

If the term of an establishment pursuant to the Collective Redundancies Directive 98/59/EC (MERL), which is decisive for a notification of collective redundancies pursuant to Art. 7 of the German Employment Protection Act (Kündigungsschutzgesetz, KSchG), is misinterpreted and if the notification to the competent employment agency is not submitted for the correct establishment, all notices of termination issued are invalid.

German Federal Labor Court (“BAG”), decision of May 14, 2020 – 6 AZR 235/19 -

Previous instance: Düsseldorf Labor Court, decision of June 8, 2018 – 4 Ca 1246/18, Düsseldorf Regional Labor Court, decision of March 20, 2020 – 12 Sa 611/18 -

In the decided case, the plaintiff was employed as flight attendant by Air Berlin, with the place of employment being Düsseldorf. Due to the closure of flight operations, the employment relationship was terminated by letter of January 27, 2018. Due to the central management of flight operations, Air Berlin filed the necessary notification of collective redundancies for the "cabin operations" and thus for the cabin personnel working nationwide with the employment agency in Berlin North which is responsible for Air Berlin’s headquarters.

The applicant contests the closure and claims that the flight operations were partially continued by other airlines. Her employment relationship had been transferred to Luftfahrtgesellschaft Walter (LGW) and the notification of collective redundancies was incorrect.

The lower instances have dismissed both the action for protection against dismissal brought against Air Berlin’s insolvency administrator and the action for a declaratory judgment against LWG. The appeal to the BAG was partially successful.
The notice of termination was invalid as the notification of collective redundancies pursuant to Art. 17 KSchG should have been submitted to the competent employment agency in Düsseldorf. The defendant had misunderstood the concept of an establishment pursuant to MERL 98/59/EC, which is relevant for the notice of collective redundancies pursuant to Art. 17 KSchG. According to the concept of an establishment under EU law, an establishment pursuant to Art. 17 KSchG is the entity to which the employees affected by the dismissal belong in order to fulfil their duties. Since Air Berlin’s Düsseldorf station was to be qualified as an independent establishment, the notification should have been submitted to the competent employment agency in Düsseldorf so that the notice of termination is invalid due to an incorrect notification of collective redundancies.

Due to the fact that the requirements for a transfer of business pursuant to Art. 613a BGB (German Civil Code) had not been met, the employment relationship had not been transferred to LGW, so that the appeal had to be rejected in this respect.

Note

A notice of collective redundancies must already be filed within 30 days in case of a dismissal of more than 5 employees in establishments normally employing more than 20 workers, although it is very difficult to understand the exact requirements for a proper collective redundancies procedure due to the complexity of the protection. Therefore, a notification of collective redundancies must always be prepared with particular care, since any mistake will render all notices of termination invalid.

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