A current decision of the Regional Labour Court of Düsseldorf dated 23 November 2011 (docket no. 12 Sa 926/11) makes it quite clear that the declaration of a waiver of termination made by an employer is absolute and, during the period of applicability of such waiver of termination, can justify neither an ordinary nor extraordinary termination for operational reasons if such employer already offered the waiver of termination as counter-performance in a difficult economic situation. What is new in this connection is that, according to the findings of the Regional Labour Court of Düsseldorf, expressly extraordinary terminations for operational reasons are excluded herefrom.
The basis for the decision is that the sued employer had excluded ordinary terminations for operations reasons until 31 December 2011 on grounds of a service agreement. This was counter-performance for the employees having waived their Christmas bonus and thus making it possible for personnel costs to be reduced. All the same, in January 2011 the employer declared terminations following the conclusion of social selection guidelines and a social plan, because – according to the sued employer – unexpectedly high collective wage increases had raised the personnel costs even further. In the opinion of the Regional Labour Court of Düsseldorf the declared extraordinary terminations for operational reasons were not justified. Firstly, the waiver of termination was not cancelled by the conclusion of the social selection guidelines and the social plan. Secondly, the employer could not extraordinarily terminate the employment relationship for operational reasons because in that particular case the waiver of termination had already been agreed in knowledge of a difficult economic situation. The employer's insolvency risk was not a tenable argument in justification of the terminations.
The decision of the Regional Court of Düsseldorf must also be seen in the context of the reform of insolvency law. According to the legislator's intention, the aim of an insolvency is to restructure the enterprise as opposed to winding it down. This legislative intent will be reinforced even further with the new statutory provisions coming into force next year on the facilitated restructuring of enterprises [Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen, ESUG]. With this, restructuring concepts and the pertaining coordinated labour law measures such as collective restructuring agreements will take a prevailing position. However, a waiver of the declaration of terminations for operational reasons – and this notwithstanding the ESUG – is and remains an exception.
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