How to proceed against the termination of works council members

Works councils are also repeatedly threatened with dismissal. However, the causes usually have nothing to do with the actual work of the works council. On the contrary, there are some employers who will use any occasion, no matter how small, to get rid of a works council member. However, it’s not quite as simple as some employers might imagine.

You enjoy special protection against dismissal

As a works council member, you benefit from special protection against termination, § 15 para. 1 Dismissal Protection Act (KSchG). You can only be given extraordinary notice of termination. However, the termination is tied to many conditions.

The extraordinary termination of works councils is also governed by Section 103 of the Works Constitution Act (BetrVG). In addition to the usual strict requirements, there is also a special hearing of the works council committee. All of this – as can be seen from the case law of recent years and months – has not prevented many an employer from successfully terminating works council members as well. Therefore, you should consider the requirements that must be met by you or your employer when giving notice of termination. Know the details of the questions put to you by your fellow committee members. Also in your own interest. This is the only way you will be able to represent your colleagues well – if necessary.

Termination of Works Council – Requirements of § 103 BetrVG

Pursuant to Section 103 of the Works Council Constitution Act (BetrVG), it is a prerequisite – as with any other extraordinary termination – that there is good cause for the termination, which makes the continuation of the employment relationship unacceptable. The circumstances of the individual case are decisive: It must be determined whether certain conduct is sufficient to justify extraordinary termination, taking into account the specific circumstances. In the case of extraordinary termination, 3 conditions must also be met, namely:

1. Your participation is mandatory

As a works council committee, you must be heard in accordance with § 103 BetrVG if your employer wishes to terminate the employment of a works council member. He will thereby ask you for consent according to § 103 para. 1 BetrVG ask, since this agreement for the extraordinary notice must be present. As a committee, you have the following options for responding to such a hearing:

  • You refuse to give your consent.
  • You remain silent.
  • You agree.

You must send your reaction to your employer within 3 days, as with other extraordinary notices of termination.

2. Interest assessment performed?

In the case of extraordinary termination, your employer must also weigh up the interests involved, taking into account the specific circumstances of the individual case. Here you have to check first of all if the continuation of the employment relationship with the colleague is possible for him. is also reasonable under changed conditions. In concrete terms, this means in reverse that there must be unreasonable facts on the basis of which your employer, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract, can no longer continue the employment relationship with the affected committee colleague. When weighing your interests, you should focus your attention on the following points:

  • Type and severity of the misconduct,
  • Risk of repetition,
  • Degree of fault,
  • Age of the colleague,
  • Consequences of the termination of the employment relationship,
  • Size of the company,
  • Length of service.

In the context of your hearing, make sure above all that your employer also takes into account exonerating moments.

3. Exclusion period of 2 weeks

As is well known, according to § 626 para. 2 sentence 1 of the German Civil Code (BGB), extraordinary termination for good cause can only take place within 2 weeks

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