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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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