The employer bears the operational risk. These are causes that have an external effect on the company and prevent it from continuing. According to previous case law, this also includes cases of force majeure, e.g. natural disasters, earthquakes, floods or extreme weather conditions. The Düsseldorf Regional Labor Court (8 Sa 674/20) has now confirmed: The current corona pandemic is such an event.
From April 1, 2016 to April 30, 2020, the plaintiff was employed by the defendant, who operates an arcade, as an arcade employee at a gross hourly wage of EUR 9.35. Due to the pandemic, the defendant was initially forced to close its operations from March 16, 2020 due to a general administrative order. A short time later, the Corona Protection Ordinance NRW (CoronaSchVO) of March 22, 2020 prohibited the operation of amusement arcades. If operations had been continued, the plaintiff would have worked a total of 62 hours in accordance with the duty roster in April 2020. Since the applicant’s employment relationship ended on May 1, 2020 due to her retirement, she received no short-time allowance. The defendant had received state compensation payments totaling 15,000 euros for the period March and April 2020.
With her lawsuit, the plaintiff seeks, among other things, acceptance default wages for 62 lost working hours in April 2020. She said that the employer would bear the operational risk even in the pandemic. The defendant, on the other hand, takes the view that the loss of wages is part of the general life risk of the plaintiff because, as an employer, she was unable to accept the plaintiff’s work due to the officially ordered or prompted closure of the company.
The LAG Düsseldorf as well as the labor court (ArbG) Wuppertal awarded the plaintiff the remuneration for the failed 62 working hours. Reason: The defendant was in default in accepting the plaintiff’s work. The fact that the state closure caused by the CoronaSchVO resulted in the operating risk at the expense of the arcade does not change that.
A company closure due to a pandemic also counts as an operational risk. In the absence of a clear delimitation, it is not a matter of whether this closure covers an entire industry, which would initially have to be defined as such, or only individual companies in this industry, possibly nationwide, only in individual countries or locally. Therefore, the scope of the official prohibition cannot be used as a basis. There was no case in which the plaintiff could no longer utilize her labor at all, which may be part of her general life risk. (Source: press release from the court)
–
