Effective (post-) termination notice at Air Berlin

Many airlines have had difficult years. This was also the case for the insolvent airline Air Berlin. An formally incorrect mass dismissal notification that failed to take into account the business entity termas determined under European Union law led to the invalidity of numerous dismissals of cabin staff in 2018 - we reported in our newsletter of August 31, 2021. The Federal Labor Court (BAG) has now decided that the subsequent dismissals made by the airline's insolvency administrator in 2020 are valid.

Facts

Air Berlin employed the plaintiff as a flight attendant at its location in Düsseldorf. The airline initially terminated the employment relationship as early as January 2018 due to the shutdown of flight operations. However, the employment relationship was not effectively terminated by this first termination. In its judgement of May 14, 2020, the BAG (Case No.: 6 AZR 235/19) decided that the terminations of the cabin crew were invalid due to a formally incorrect mass dismissal notification pursuant to Section 17 para1, 3 of the German Unfair Dismissals Act (KSchG) in conjunction with Section 134 of the German Civil Code (BGB). At this time, Air Berlin had submitted the obligatory mass dismissal notification  at its headquarters to the (not responsible) employment agency - responsible was the employment agency in the district where it was stationed. Furthermore, the status of the consultation process with the works council had not been sufficiently explained in the notification at the time.

In a letter dated August 27, 2020, the insolvency administrator (again) terminated the employment of the remaining plaintiff, among others, as part of another mass layoff. The plaintiff was of the opinion that this termination was also invalid, in particular due to formal defects. However, the lower courts dismissed the action for protection against unfair dismissal.

Decision

The BAG has now confirmed the decisions of the lower courts. The employment relationship was effectively terminated by the (subsequent) notice of termination dated August 27, 2020. Due to the shutdown of flight operations, the termination is socially justified.

The requirements for the consultation procedure with the works council pursuant to Section 17 para 2 KSchG were also met this time. Among other things, the staff representatives were sufficiently informed about the period of the intended layoffs. Furthermore, the insolvency administrator notified the responsible employment agency in Düsseldorf of the mass layoff in the second attempt.

Practical tip

The importance of planning and diligence when notifying a mass layoff - as a prerequisite for the effectiveness of the termination - cannot be overemphasized. In recent years, the labor courts have repeatedly dealt with the prerequisites for this. In addition, a preliminary ruling by the BAG is currently pending before the  European Court of Justice (see BAG dated January 27, 2022 - 6 AZR 155/21). These proceedings are intended to answer the question of whether a termination is invalid if there is merely a breach of the obligation under Section 17 para 3 sentence 1 KSchG to provide the Employment Agency with a copy of the notification initiating the consultation procedure and addressed to the works council.
The decisions of the recent past show that the jurisdiction is taking a tough line and that formal mistakes must be avoided at all costs. The preparation of complex mass layoffs and the associated procedures require strict adherence to all formal requirements - we are happy to provide support in this regard at any time. Please do not hesitate to contact us!