Termination - participation of the disabled person's representation
Yes, but not immediately.
Anyone who was still in this question with the Saxon must now rethink. A termination is not only ineffective because the employer did not immediately inform the severely disabled representative representation against Section 178 (2) sentence 1 SGB IX (until December 31, 2017: Section 95 (2) sentence 1 SGB IX) or immediately informed her to adhere to his termination decision. This emerges from the BAG's judgment of December 13, 2018 - 2 AZR 378/18. The Saxon's view that the hearing of the representative for the severely disabled should have been carried out before or at the same time with the completion of a procedure at the integration office and the hearing of the works council, the BAG does not confirm.
The employer applied for the official approval of the ordinary termination of the employment relationship of the employee, which is equivalent to a severely disabled person. The integration office then gave approval. Afterwards, the employer first heard the works council and then the representative for the severely disabled for her intention to terminate and then terminated the employee's employment relationship. The lower courts gave the dismissal protection lawsuit.
According to the BAG, the Court of Appeal wrongly assumed that the termination was ineffective in the decided case in accordance with Section 95 (2) Sentence 3 SGB IX AF (from 1.1.2018: Section 178 (2) sentence 1 SGB IX) because the employer only participated in the severely disabled representation after the procedure has been completed before the integration office and after hearing the works council. However, the Federal Labor Court was not able to finally assess the effectiveness of the termination based on the findings made so far, so that it rejected the matter for the new negotiation and decision to the State Labor Court.
Practical information
This judgment clearly shows that there are also many formal stumbling blocks in the preparation and the saying of dismissals. Here the employer has to act with special care.
It is also essential to know the subtleties of the labor court case law.
The most important thing of this decision is: The termination of the employment relationship of a severely disabled person is only effective if the employer listened to the representative of the severely disabled and the works council and only expresses it when the procedure is completed before the integration office. The required content of the hearing and the duration of the deadline for a statement by the severely disabled representative representative is based on the principles applicable to hear the works council (§ 102 BetrVG).
