Judgment of the Labour Court of Berlin of 6 April 2022 in Joined Cases No. 20 Ca 10257/21, 20 Ca 10258/21 and 20 Ca 10259/21
Downing tools to participate in a “wildcat strike”, a strike that is not organised by the union, can constitute a breach of duties and justify extraordinary dismissal without notice.
Facts of the case
The employees were employed as bike couriers. To ensure their demands were heard, the employees participated in a four-day strike. This strike was not organised by a union but taken solely by the employees. Despite numerous requests from the employer to end the “wildcat strike”, the employees did not take up their work again.
The Labour Court (Arbeitsgericht) in Berlin held that the extraordinary notices of dismissal with immediate effect which were issued were effective. In doing so, the Court applied the settled case law of the labour courts. Accordingly, industrial action is only legal when it is taken by parties able to conclude a collective agreement in order to assert the demands that they are seeking to implement through a collective agreement. On the employee side, unions and not individual employees can sign a collective agreement. Accordingly, a strike that is not authorised by the union cannot result in the conclusion of a collective agreement and is therefore not valid industrial action.
Consequences for practice
Employers do not have to simply accept employees ceasing work without the backing of the union. This is an unjustified refusal to work and classic labour law measures can be used to counter such unjustified action. It must be kept in mind that the employee’s conduct will only justify a written warning and notice of dismissal when the employee does not perform their work. Where an employee only takes part in such strikes outside of working hours, a notice of dismissal is not justified - at least for unlawful refusal to work.
Where employees participate in “wildcat strikes”, employers should demand that the employees return to work without delay and simultaneously warn of legal consequences for their employment if they fail to comply. If this does not have the desired effect, employers can issue notices of extraordinary dismissal with immediate effect.
Author: Benedikt Holzapfel