Authority of a personnel manager to dismiss

BAG, judgment dated 25.8.2014 - 2 AZR 567/13

A personnel manager can also be empowered to serve notice of termination alone if he is an Authorised Officer with collective power of representation. The restricted authority as Authorised Officer with collective power of representation does not affect his empowerment to serve notice of termination.

The defendant employer served the claimant with notice of ordinary termination for operational reasons on 27 April 2012 as part of a change in business operations. The letter of termination was signed jointly by the personnel manager with the addition “ppa” (as Authorised Officer) and the personnel caseworker with the addition “i.V.” (by commercial power of attorney). According to the Commercial Register, the personnel manager had been appointed as Authorised Officer with collective power of representation. By letter dated 2 May 2012, the claimant rejected the notice of termination as inadmissible due to the lack of evidence of the signatory’s power of representation.

Immediate rejection of notice of termination based on failure to present power of attorney is possible

Under the law, notice of termination served by an authorized representative is ineffective if the authorised representative fails to present evidence of power of attorney to the employee, and the employee rejects the termination immediately for this reason (Section 174 Sentence 1 BGB). Such rejection is excluded if the employer has informed the employee in another manner that the authorised representative is entitled to serve notice of termination (Section 174 Sentence 2 BGB).

As a rule, a personnel manager is entitled to serve notice of termination

The Federal Labour Court has already decided repeatedly in the past that any such “informing in another manner” is given if the authorised representative holds a position in the company that normally involves a right to serve notice of termination. This is the case with a personnel manager. Nevertheless, the employee must have been informed beforehand of who holds this position.

A special factor in the legal dispute at hand was that the personnel manager had simultaneously been appointed as Authorised Officer with collective power of attorney. The Senate was therefore required to decide whether the position as Authorised Officer with collective power of representation, in which the personnel manager can fundamentally only effectively represent the company externally together with a Director or another Authorised Officer, has an effect on his power to serve notice of termination alone.

No effects of appointment as Authorised Officer with collective power of representation on the entitlement of a personnel manager to dismiss

In the opinion of the Federal Labour Court, the power of representation of a personnel manager to serve notice of termination alone is not however restricted by the appointment as Authorised Officer with collective power of representation. If the employee has sufficient knowledge of which person holds the position of personnel manager, he must assume that this person is entitled to serve notice of termination alone. The fact that, in this case, the personnel manager signed the letter of termination with the addition “ppa” changes nothing in this respect.

Summary

If notice of termination is signed by an authorised representative of the company, the original power of attorney, indicating the power of attorney to serve notice of termination, must regularly be enclosed with the notice of termination. If the notice of termination is signed by the personnel manager, the submission of any such power of attorney is not mandatory, if the staff has previously been informed of who holds this position. This can be for example through announcement in the Intranet or through display on the notice board. In case of doubt however, it is always advisable to enclose an original power of attorney with the notice of termination.