The problem:
Due to the Corona crisis, many companies are forced to send employees on short-time work. However, employers cannot simply unilaterally order short-time work because subsequent, unilateral amendments to contractual conditions are fundamentally prohibited. After all, a mutual contract has been concluded by the parties as it is because both sides consider the contract to be fair. A unilateral amendment of an already concluded contract is therefore only permitted within very narrow limits.
Die (previous) approaches:
Short-time working can therefore only be introduced if there is a legal basis for this. Initially, collective bargaining regulations in collective agreements or company or service agreements come into consideration.
If these possibilities under collective law are not available, short-time working can only be introduced on the basis of a (labor) contractual agreement. Some employment contracts regulate how and when short-time work can be ordered unilaterally as a precaution. If such authority to issue orders has not been regulated in the employment contract, the only option is to conclude a subsequent short-time working agreement with the individual employees.
So far, it has not been clarified whether and what options employers can take if individual employees reject such a short-time work agreement.
In particular, it is questionable whether in such cases the expression of a extraordinary termination without notice due to operational reasons comes into consideration. This legal question is one of the most discussed labor law questions in connection with the Corona crisis.
The decision of the Stuttgart Labor Court:
The Stuttgart Labor Court has now decided that such an extraordinary termination without notice is possible (ArbG Stuttgart, ruling of October 22, 2020, Az .: 11 Ca 2950/20).
The court deals in great detail with the mutual arguments. In particular, the court comes to the conclusion that in the case of an extraordinary termination without notice for the introduction of short-time work, there is no case of a termination (only permissible in extreme exceptional cases) for a pure reduction in pay.
In addition, the court emphasizes that the ultima-ratio principle, which must always be observed when issuing dismissals, must be observed. This means that a termination can only be justified if it represents the mildest means to achieve the desired goal.
Employers will therefore first have to exhaust all milder means before issuing an extraordinary, immediate, operational change notice to introduce short-time work. This includes, in particular, the (verifiable) attempt to reach an amicable solution with those affected.
In the opinion of the Stuttgart Labor Court, there is not always a milder means neat-timely Cancellation of change in consideration. In addition, the court found that longer change notice periods in particular would counteract the aim of short-time work.
Evaluation of the decision:
I assume that other courts will follow the decision of the Stuttgart Labor Court. The judgment is very detailed and convincingly justified. For employers, the risk of being unsuccessful in the end with an extraordinarily immediate, operational change notice to introduce short-time work has decreased significantly. Against this background, it can be expected that this instrument will now be used more frequently.
Have you received an extraordinary termination without notice to introduce short-time work or are you forced to make use of this instrument as an employer? As a specialist lawyer for labor law, I would be happy to advise you!
Stay healthy!
Your lawyer Dr. Andreas Schneedorf
Foto: Ksenia Chernaya / pexels.com/Ksenia Chernaya
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