Repeat dismissal and works council hearing. LAG Schleswig-Holstein 05.03.2014

If a formally invalid notice of termination is given, the works council must be consulted again if another formally valid notice of termination is given. If the works council is not consulted again, the dismissal is already invalid, regardless of the reasons on which the dismissal was based.

The case before the Regional Labor Court dealt with an extraordinary termination without notice of a croupier who was employed by a casino. The casino was represented by two managing directors. The dismissal was based on the allegation that the employee had played with guests and held cards in such a way that guests could see them while playing poker. The employer consulted the works council on the intended extraordinary, or alternatively ordinary, dismissal. The works council agreed to the ordinary dismissal, but not the extraordinary dismissal. The dismissal was then announced. The letter of termination contained the scanned original signature of one managing director and the original signature of the other managing director. A few days later, the casino terminated the employment relationship again, this time the notice of termination was signed by both managing directors. However, the works council was not consulted again before the second notice of termination was issued.

Pursuant to Section 102 (1) BetrVG, a dismissal without prior consultation of the works council is invalid. A new hearing is required if the employee has received the first notice of termination, the decision to terminate has thus been implemented and the notice of termination suffers from formal deficiencies. This applies even if the facts of the dismissal are the same. The Regional Labor Court was not convinced by the employer's argument that the first notice of termination was not yet a declaration of termination. Even if the first letter of termination only contained a scanned signature and was therefore formally invalid, it was still a declaration of termination, as it was designated as a termination in the letter to the employee. The further notice of termination issued without consulting the works council again was therefore invalid pursuant to Section 102 (1) BetrVG.

A new hearing of the works council is also necessary if only formal errors were made in the dismissal. Even if the works council will not issue any other statement on the dismissal, the repeated consultation of the works council is mandatory.

Date: 5. Mar 2014