Duty to provide information about placement proposals of the Agentur für Arbeit

If an employee is dismissed, he/she must look for other employment opportunities. To prove his efforts, the previous employer can demand information from the dismissed employee, especially if the employee resists the dismissal in court.

BAG, judgement of 27.05.2020, Az. 5 AZR 387/19

The facts of the case

The plaintiff is employed with the deplored one since 03.06.1996 as a building craftsman. The defendant gave several notices of termination to the plaintiff since 2011, including a notice of termination of 30.01.2013 without notice and alternatively in due time. In the subsequent dismissal protection proceedings before the labor court, the plaintiff won the case in the second instance. In a further proceeding, the plaintiff asserted default of acceptance wage, taking into account the unemployment benefit and unemployment benefit II received during the period of the dismissal protection suit. Against this the deplored one objected that the plaintiff had maliciously omitted in the period concerned an other acquisition, and desired therefore counterclaiming from the plaintiff information over the job offers and switching suggestions submitted to the plaintiff by the Federal Employment Agency. In a partial verdict, the labor court thereupon ordered the plaintiff to provide the defendant with written information about the job offers submitted to the plaintiff by the Federal Employment Agency and the Job Center in the period from February 1, 2013 to November 30, 2015, stating the activity, the working hours, the place of work and the remuneration. The plaintiff appealed against this. He was of the opinion that information had already been provided in the first instance and that there was no apparent basis for a claim regarding the right to information. The defendant, on the other hand, took the view that the requested information had not yet been provided. The basis of the claim was a general right to information. The plaintiff's appeal was unsuccessful; the Federal Labor Court also rejected the appeal.

What was the verdict of the Federal Labor Court?

According to the Federal Labor Court, the request for information is based on good faith (§ 242 BGB), since an employer needs such a claim for information to enforce a possible objection resulting from § 11 No. 2 KSchG. In § 11 No. 2 KSchG it is standardized that in case of a judicially decided continuation of the employment relationship an employee must have the earnings credited against the remuneration then owed by the employer, which he could have achieved during the judicial clarification, if he had not maliciously omitted to take on a work which is reasonable for him. Also the probability necessary for the acknowledgment of an obligation to provide information that the objection is justified is to be affirmed, because the agency for work is obligated in accordance with § 35 exp. 1 SGB III just like the job center to the employment agency. Finally, the employer also had no other legal possibility of obtaining the information, since the social secret protected by § 35 SGB I prevented the Employment Agency and the job center from providing the employer with information directly. Only if the employer obtains information about placement proposals that have been made can it check whether the employee who has been dismissed has refused a reasonable alternative employment and thereby maliciously refrained from earning other money. The interests of the terminated employee are sufficiently taken into account by the fact that he can justify, if necessary, why the placement proposals submitted to him were unreasonable for him.

Conclusion

The decision of the Federal Labor Court is to be welcomed. Up to now, only a claim for information on the other earnings actually achieved was affirmed, but with regard to a malicious omission under § 11 No. 2 KSchG, it was denied (for example Hessisches LAG, judgement of 11.5.2018 - 10 Sa 1628/17). The present decision thus strengthens the position of employers in default of acceptance. As far as an employee claims default of acceptance wage, the employer is entitled to demand information - now also with regard to the notified placement proposals of the Agentur für Arbeit - and to assert a right of retention until the proposal is granted.