Unlawful threat precludes the validity of a waiver of action clause in a termination agreement BAG 12.03.2015 - 6 AZR 82/14

The plaintiff, who had been employed by the defendant since 2001, consumed a ready-made soup in the break room of the store on December 27, 2012, after he had previously thrown another opened packet into the trash can there. On 28.12.2012, the plaintiff was summoned to the store manager's office for a meeting with the store manager and the district manager without being told the reason for this. He was told that he had taken the two ready-made soups from the stock without payment. The plaintiff denied this. He had received one soup from a customer, who returned the soup without asking for the money back, and he had bought the other soup in his own store between December 19 and 22, 2012. After the cash register data showed that no soups were sold during this period, the defendant threatened to dismiss the plaintiff without notice and report him for theft unless he signed the termination agreement presented. The plaintiff then signed the termination agreement, according to which the employment relationship was to end on December 28, 2012 without payment of severance pay. In addition, the contract included a waiver of revocation and a waiver of legal action. This made use of the legal option to waive in writing the right to revoke the general collective agreement for the retail sector in North Rhine-Westphalia dated July 25, 2008, which applied to the employment relationship. On the same day, the termination agreement was challenged by the plaintiff on the grounds of unlawful threats. The decision now concerns his claim for a declaration that the employment relationship still exists. The plaintiff is of the opinion that the threat of extraordinary termination is unlawful due to the previously unencumbered and long-standing employment relationship.

After the labor court had previously dismissed the claim, the regional labor court upheld the plaintiff's appeal. The BAG has now overturned this appeal decision. Contrary to the opinion of the LAG, the effectiveness of the waiver of revocation is irrelevant, as a revocation within the meaning of Section 11 (10) MTV had not taken place within the prescribed revocation period of 3 working days. The LAG had previously assumed a declaration of revocation within the deadline. However, the BAG considers the effectiveness of the waiver of action to be problematic, as this ultimately deprives the plaintiff of the opportunity to challenge the termination agreement in a legally enforceable manner. Whether this is legally possible depends on the question of whether the threat of extraordinary termination was unlawful. This question must now be clarified by the LAG.

The effectiveness of the termination agreement therefore ultimately depends on the effectiveness of the waiver of action clause. This in turn is only effective if the threat of extraordinary termination was not unlawful. The threat of dismissal is not unlawful if the employer could seriously consider the dismissal. If it is unlawful, the waiver constitutes an unreasonable disadvantage within the meaning of Section 307 (1), (2) No. 1 BGB. According to the BAG, the threat of extraordinary termination would be unreasonable if a reasonable employer could not seriously consider the threatened termination.