The required notification of mass dismissals may also be effectively filed if the employer has already decided to terminate the employment at the time the notification is received by the Employment Agency. Notices of dismissal under the mass dismissal procedure are therefore effective if the notification is received by the competent Employment Agency prior to employees receiving the notice of dismissal.
Federal Labor Court, February 19, 2019 – 3 AZR 150/18
Berlin-Brandenburg State Labor Court, May 9, 2019 – 18 Sa 1449/18
In both proceedings, the parties are in dispute about the effectiveness of a dismissal subject to mass dismissal notification. The respective employer had already signed the dismissal notices at issue prior to announcing the scheduled mass dismissals to the Federal Employment Agency. Subsequently, after receipt of the notification of mass dismissals by the agency, the notices of dismissal were received by the plaintiff employees. The employees considered the dismissals to be ineffective due to a lack of effective mass dismissal notification.
The State Labor Court and the Federal Labor Court decided that the employers’ action was legally permissible.
According to the rulings, the procedure under Section 17(1) Protection Against Dismissal Act was not intended to influence the employer’s decision to dismiss workers. The notification procedure serves employment policy purposes. The Employment Agency should be notified of an imminent mass dismissal in due time to prepare for the dismissal of a larger number of workers and to allow the agency to adjust its placement efforts accordingly. This would require that it had already been established how many and which employees specifically were to be made redundant. Unlike the requirement of hearing the works council under Section 102 Works Constitution Act or the consultation procedure under Section 17(2) Protection Against Dismissal Act, the employer may already have made its final decision to issue a mass dismissal notification prior to meeting its notification obligation according to Section 17(1) Protection Against Dismissal Act. The only decisive factor was therefore whether the mass dismissal notification had been received by the Employment Agency prior to receipt of the dismissal notices.
The issue as to whether the mass dismissal notification had to occur prior to sending out the notice of dismissal or only prior to the receipt of the notice of dismissal was adjudged differently by the courts in recent cases. In its judgement of April 25, 2019 – 21 Sa 1534/18, the 21st Chamber of Berlin-Brandenburg State Labor Court ruled that sending the notice of dismissal was the decisive point in time. Baden-Württemberg State Labor Court (lower instance of the Federal Labor Court ruling presented here) also stated in its ruling of August 21, 2018 – 17 Sa 17/18 that the mass dismissal notification has to reach the Employment Agency prior to the employer making the decision on dismissals. The 18th Chamber of Berlin-Brandenburg State Labor Court, however, ruled that the receipt of the notice of dismissal was important. Legal certainty should now be given following the decision of the Federal Labor Court.
Tip for the practice:
These judgements show that care is always required when issuing mass dismissal notifications. Even in the case of only formal errors, there is a risk that the dismissal will be ineffective. The mass dismissal notification must have been received by the Employment Agency prior to the notices of dismissal being sent to employees. In order to avoid disputes, it is recommended to wait for confirmation of receipt from the Employment Agency before actually giving any notices of dismissal.