Judgment of the Regional Labour Court of Dusseldorf of 15 October 2021 in Case No. 7 Sa 405/21
The Regional Labour Court (Landesarbeitsgericht) in Dusseldorf held that, where the thresholds are exceeded, collective redundancies must be notified to the Employment Agency (Agentur für Arbeit) even in the case of dismissal due to illness.
Facts of the case
The dispute involved dismissal(s) due to illness. Prior to issuing a notice of dismissal to the Claimant, the employer had issued 34 other notices of dismissal due to illness within a 30 day period. The Claimant brought an action for unfair dismissal and argued the dismissal due to illness was invalid. In particular, the Claimant argued that the employer should have submitted a mass redundancy notification to the Employment Agency and carried out the consultation procedure with the works council. At first instance, the Labour Court in Dusseldorf found for the Claimant.
The Regional Labour Court in Dusseldorf confirmed the judgment of the lower court. The dismissal was invalid due to the employer’s failure to submit a notification of collective redundancy pursuant to § 17 (3) of the Act against Unfair Dismissal (Kündigungsschutzgesetz, KSchG) and carry out the consultation procedure with the works council in accordance with § 17 (2) of the Act. The threshold of 30 dismissals within 30 calendar days was exceeded. It was therefore necessary to make a collective redundancy notification. This conclusion cannot be invalidated by the fact that the dismissals in question were due to illness or on personal grounds. In the view of the Regional Labour Court, such dismissals also must be taken into account when calculating the thresholds under § 17 (1) first sentence of the KSchG. This follows from the interpretation of the rule: the wording of § 17 of the KSchG refers to dismissals and does not specify their grounds. Systematically, the exceptional provision in § 17 (4) of the KSchG only applies to termination without notice.
Consequences for practice
Generally, the employer must inform the Employment Agency before issuing multiple dismissals on personal, conduct or operational grounds – how many depends on the size of the operations. As § 17 of the KSchG applies to dismissals on personal or conduct grounds, as well as redundancies on operational grounds, all dismissals must be taken into account when calculating the thresholds.
A collective redundancy notification is necessary in the case of multiple dismissals on any grounds. Section 17 of the KSchG only provides an exception in the case of dismissal without notice. In the case of doubt, a collective redundancy notification should therefore be submitted as a precaution. If one is not submitted, the dismissals will be invalid. A further appeal was rejected.
Anne-Kathrin von Dahlen