The employer's obligation under section 1 (2) of the Protection Against Dismissal Act to offer the employee continued employment under changed, possibly also significantly worsened, working conditions in order to avoid dismissal - if necessary by means of a notice of termination with changes - does not, in principle, apply to vacancies in an employer's business located abroad. Pursuant to section 23 (1) of the Dismissal Protection Act, the First Section of the Act only applies to establishments located in the Federal Republic of Germany. The term "establishment" in section 1 (2) sentence 1, sentence 2 KSchG must also be understood in this sense. It was not necessary to decide whether this precludes the consideration of employment opportunities abroad if the employer relocates his business as a whole or a part of it while maintaining its identity.
The defendant is a company in the textile industry based in North Rhine-Westphalia. For some time it has maintained a plant in the Czech Republic in which it produces dressing materials. The "finishing" of the fabrics took place in a factory located at the defendant's seat. The plaintiff had worked there as a textile worker since 1984. In June 2011, the defendant decided to concentrate its entire production in the Czech plant. Only the administration and the "commercial area" were to remain in Germany. In view of this, the defendant gave ordinary notice of termination to the production staff employed at its headquarters. The plaintiff took the view that the dismissal was socially unjustified. The defendant should have given her the opportunity to at least think about a move by issuing a notice of change.
The action for protection against dismissal remained unsuccessful before the Second Senate of the Federal Labour Court - as in the previous instances. Due to the relocation of the "final production" to the Czech plant - several hundred kilometres away from its registered office - the defendant no longer had the possibility to continue employing the plaintiff in a domestic plant. There were no circumstances under which, exceptionally, an obligation of the employer to continue employing workers abroad could be considered.
Judgment of the Federal Labour Court of 29 August 2013 - (2 AZR 809/12)
Previous instance: Düsseldorf Regional Labour Court Judgment of 5 July 2012 - (15 Sa 759/12)
Source: Press release of the BAG
Goldberg Attorneys at Law 2013
Lawyer Dirk Möller
E-mail: info@goldberg.de
