Member Article

As a rule, an extraordinary notice of termination can be given to a severely disabled employee within one week of receiving the approval of the Integration Office.

BAG, ruling dated February 27, 2020, 2 AZR 390/19

Employers may give an extraordinary and immediate notice of termination to a severely disabled employee even after the expiry of the two-week period applicable to extraordinary termination if the notice of termination is given immediately, i.e. "without undue delay", after receipt of the approval of the Integration Office. After a period of more than one week - without the existence of special circumstances - it can generally no longer be assumed that the termination is immediate. The question of the timeliness of the application to the Integration Office is to be examined solely by the Integration Office or, in the event of an appeal, by the administrative courts, but not by the labour courts, unless the consent to dismissal is invalid or has been rescinded with legal effect.

PROPERTY CONDITIONS

In a letter dated 16 March 2016, the employer, which operates a secondary school, gave an extraordinary and immediate notice of termination to an employee who had been employed as a teacher since 1998. The employer accused the employee of having only given assistance to individual pupils during a class work carried out on 29 February 2016. In a letter of 28 March 2016, the employee then informed the employer of her application (before receiving the notice of dismissal) for a determination of the severe disability. Thereupon, on 8 April 2016, the employer applied for the approval of the Integration Office for a further extraordinary dismissal. By decision of 20 April 2016, which the employer received on 22 April 2016, the Integration Office agreed with regard to the extraordinary dismissal. In a letter dated 26 April 2016, received by the employee on 28 April 2016, the employer terminated the employment relationship of the parties extraordinarily and without notice. The employee asserted a claim for protection against dismissal both for the dismissal of 16 March 2016 and the dismissal of 26

The Labour Court ruled in favour of the complaint. The Regional Labor Court also rejected the employer's appeal. Both courts found that the notice of dismissal had not been given within the two-week period stipulated in Section 626 (2) of the Civil Code after receipt of the consent of the Integration Office.

DECISION

The employer's appeal was successful. According to the Federal Labour Court, an extraordinary notice of termination can still be validly given after the expiry of the period in Section 626, subsection 2, Sentence 1 of the Civil Code, provided that the notice of termination is given immediately after receipt of the consent or after the expiry of the period in Section 174, subsection 3, Sentence 2 of the Social Code Book IX, and if there is good cause.

The submission of the (second) notice of termination six days after receipt of the consent of the Integration Office can still be regarded as "without delay". However, after a period of more than one week after having received the consent of the Integration Office, there is no longer any immediacy without special circumstances. This can be found accordingly in the legal definition of Section 121 subsection 1 of the Civil Code, according to which without delay also means "without undue delay" with regard to matters pursuant to Section 174 subsection 5 of the Social Code Book IX. Therefore, "without delay" does not mean "instantaneously", nor is it associated with a rigid time limit. A reasonable weighing of the interests of both sides is decisive. As a rule, therefore, it can only be assumed that there is no longer any immediacy after more than one week has passed since receipt of the consent of the Integration Office.

Furthermore, the deadline for filing the application of consent at the Integration Office is determined by Section 174, subsection 2 Social Code Book IX and is not to be reviewed by the labour courts. Once the consent of the Integration Office has been issued, it is binding for the labour courts and therefore cannot be reviewed by them - unless it is invalid or has been rescinded with legal effect. Pursuant to Section 174 subsection 2 of the Social Code Book IX, the employer may only file an application for consent regarding the dismissal within two weeks after he has become aware of the facts relevant for the dismissal. The time limit in Section 626 subsection 2 BGB is suspended during this period. Even if it should turn out that the employer's application submitted to the Integration Office was subject to a time limit, the time limit under Section 626 subsection 2 of the Civil Code is suspended because the labour courts may only review whether the extraordinary and immediate dismissal has been given immediately after receipt of the consent of the Integration Office.

PRACTICE TIP

Before giving an extraordinary notice of termination, the employer must submit an application for approval with regard to the termination to the competent integration office within two weeks after becoming aware of the severely disabled employee's breach of duty. Only the Integration Office itself may check whether this deadline has been met by the employer. Section 626 subsection 2 of the Civil Code is suspended until the consent of the Integration Office has been granted.

After receiving the approval of the Integration Office, employers must then ensure that the extraordinary notice of termination to be given to the severely disabled employee is received by the employee (proven, i.e. by courier) without delay, i.e. within one week at the latest. In this context it is tricky that already the verbal consent of the Integration Office sets the deadline in motion and waiting for the receipt of the written decision is considered a culpable hesitation by the Federal Labour Court (BAG 21.04.2005, 2 AZR 255/04). Therefore, simply waiting for the written decision could lead to the invalidity of the (otherwise justified) termination.