Nuremberg Higher Labor Court: Recall from the office of waste representative - employer's right of direction

Nuremberg Higher Labor Court, Judgment of February 21, 2023 - 5 Sa 76/22

There are a large number of possible special representatives in companies and operations. Some of these offices are widely known, such as that of the data protection officer. However, there are also special representatives who tend to lead a shadowy existence in the public eye. One of these is likely to be the waste representative.

Not every company is required to appoint a waste representative. Companies are only obliged to do so in the cases regulated in Section 59 of the German Closed Substance Cycle Waste Management Act (KrWG). This applies, for example, to operators of facilities that regularly generate hazardous waste. The position of waste representative can be filled either internally by an employee or by an external service provider.  

If there is an internal waste representative in the company, the employer must consider a number of things: First of all, there is special protection against dismissal in favor of the waste representative (Section 60 (3) sentence 1 KrWG in conjunction with Section 58 (2) BImSchG). Likewise, the waste representative may not be discriminated against with regard to the performance of the tasks assigned to him (Section 60 (3) sentence 1 KrWG in conjunction with Section 58 (1) BImSchG). Finally, the works council or staff council must be informed in particular prior to appointment and recall (Sec. 60 (3) Sentence 1 KrWG in conjunction with Sec. 55 (1a) BImSchG).

Now, the Nuremberg Higher Labor Court has ruled that the recall of an employee from the position of waste representative is not subject to the rules for the exercise of the employer's right of direction. This means in particular: The employer is not bound by the limits of equitable discretion in its decision on the recall - in contrast to § 106 GewO.

Facts

The plaintiff has been employed by the defendant since December 1993. In March 1994, the plaintiff was appointed as waste representative by the defendant. As of March 31, 2017, the defendant revoked the plaintiff's appointment as waste representative and appointed an external waste representative instead. The plaintiff objected to this with his lawsuit. The defendant had not sufficiently substantiated the corporate decision allegedly underlying the recall. 

Decision of the Nuremberg Higher Labor Court

In contrast to the Nuremberg Labor Court, the Nuremberg Higher Labor Court dismissed the action in this respect. The recall of the plaintiff from the office of waste representative was not legally objectionable.

First of all, the Nuremberg Higher Labor Court emphasized in its decision that the waste representative - just like the data protection officer - is a so-called functional office. If an employee performs the office in the existing employment relationship, the employment contract is extended by the tasks associated with the office for the duration of the performance in accordance with the statutory provisions. As soon as the office ceases to exist - for example through revocation of the appointment - the activity is no longer part of the contractually owed performance. In this respect, the employment claim under the employment contract also ceases to apply. This could only be different if the employment contract explicitly stipulates that the employee is to perform the duties of the waste representative. However, this is not the case here.

Furthermore - according to the Nuremberg Higher Labor Court- the recall from the office of the waste representative does not take place by way of the employer's right of direction. Rather, the recall and appointment is based solely on the provisions of public law, irrespective of the basic relationship (employment relationship). However, these do not link the recall from the office of waste representative to any material requirements, in particular not to the existence of good cause. The recall itself is also not to be understood as a disadvantage in the sense of § 58 Para. 1 BImSchG.

Finally, the omitted or improper participation of the staff council does not lead to the invalidity of the recall. This already follows from the wording of § 60 para. 3 KrWG in conjunction with § 55 para. § 55 Abs. 1a S. 2 BImSchG. In contrast to Sec. 102 (1) BetrVG, non-participation does not lead to the invalidity of the measure.

Notes

An appeal against the ruling of the Nuremberg Higher Labor Court has already been lodged with the German Federal Labour Court (Case No.: 5 AZR 68/23). We will report on the outcome of the proceedings.

Regardless of this, the following applies: Even if the recall from the office of the waste representative may not be subject to the rules for the exercise of the right of direction, the retroactive protection against dismissal must nevertheless be must be considered following the recall (Section 60 (3) sentence 1 KrWG in conjunction with Section 58 (2) sentence 2 BImSchG). For one year - calculated from the date of termination of the appointment - the ordinary termination of the (former) waste representativeis excluded.

Furthermore, the decision of the Nuremberg Higher Labor Court cannot be applied without further to the recall of the data protection officer. This is because - unlike in the case of the waste representative - Section 6 (4) sentence 1 (in conjunction with Section 38 (2) BDSG) stipulates that the data protection officer may only be recalled for good cause.