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Works council’s request to dismiss an employee qualifies as an urgent operational reason for dismissal

Under German law, the works council can request that an employer dismisses or reassigns an employee if the employee has violated the law or has grossly violated principles set forth in sec. 75 of the Works Constitution Act, such as by showing racist or xenophobic behavior in the workplace. If the employer does not comply with this request, the works council may apply for a court order instructing the employer to dismiss or reassign the employee.

In a judgment dated 28 March 2017 (docket number 2 AZR 551/16), the Federal Labour Court held that a court order instructing the employer to dismiss an employee qualifies as an urgent operational reason, which will justify the employee’s dismissal in subsequent unfair dismissal litigation. In this case, the works council had obtained a court order for dismissal, which the employer had complied with. While the order was not sufficient to justify an immediate termination for cause, the employee’s unfair dismissal litigation brought against the termination with notice was unsuccessful in all instances, as the court order was held to have a binding effect.