Participation of the Representative Body for Severely Disabled Persons During the Dismissal Process
(FOPH, Ruling of 12.13.2018, 2 AZR 378/18)
In a very helpful decision for the practice, the FOPH has commented on the procedure for consulting with the representative body for severely disabled persons before dismissals. It is sufficient for the employer to consult the representative body for severely disabled persons before notice of dismissal in accordance with the basic principles applicable to the participation of the works council pursuant to Sec. 102 Works Constitution Act (BetrVG). In particular, the representative body for severely disabled persons must not be involved before the consultation with the works council or before the application to the Integration Office.
An employee who was treated as a severely disabled person defended herself against the ordinary termination of her employment contract through her action against dismissal and objected, among other things, that the representative body for severely disabled persons had been involved too late. The employer first applied for the approval of the Integration Office for the intended dismissal. (Only) after the official approval was received, the employer consulted the works council and finally the representative body for severely disabled persons regarding its dismissal intention and then announced the dismissal. The lower courts granted the unfair dismissal claim, because the participation of the representative body for severely disabled persons such a short time before the notice of termination was no longer "expeditious" with the consequence of the invalidity of the termination. The social justification of the termination was no longer relevant. Following the employer's appeal, the judgment was repealed by the FOPH and referred back to the Court of Appeal for a new hearing and decision.
The decision concerns the understanding of Sec. 178 (2) (3) Social Code (SGB) IX, newly incorporated into the law as of July 1, 2016 (until December 31, 2017: Sec. 95 (2) (3) SGB IX). According to this, the dismissal of a severely handicapped person, which the employer announces without the proper participation of the representative body for severely disabled persons, is irretrievably void. However, the procedure of participation regulated by the legislature is only rudimentary. According to this, the employer is required to (i) promptly and comprehensively inform the representative body for severely disabled persons of all matters affecting a severely disabled person, (ii) to consult and (iii) to notify the decision taken without delay. It is a completely open question at what point in time the participation of the representative body for severely disabled persons is to take place, what are the substantive requirements for the consultation, and when the consultation procedure ends.
The FOPH has used the present case for some important findings:
The participation procedures of the representative body for severely disabled persons and the works council are of equal importance and follow the same rules in terms of content and time. The consultations can be initiated at the same time, before or after the application to the Integration Office, but necessarily before the notice of termination, otherwise the termination is irrevocably void.
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