ArbG Düsseldorf; 2021-06-01; 1 Ca 5875/20
Decision by national courts in the field of European Union law — CLI:DE:ARBGD:2021:0601.1CA5875.20.00
Date: 2021-06-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0601(51)_ENG_SUMJURE
JURE summary
JURE summary
A senior flight attendant (hereinafter ‘the plaintiff’), who was stationed in Düsseldorf, brought a claim against his employer, an airline from Malta (hereinafter ‘the defendant’), regarding the existence of the employment relationship and the invalidity of their dismissal.
In order to avoid the closure of the German locations, the airline sent the cabin crew stationed in Germany, including the plaintiff, a key points paper signed solely by the airline. Among other things, German labour law was to be applied to cabin crew employed directly in Germany. The plaintiff agreed to the key points paper. Nevertheless, the base in Düsseldorf and other German bases were closed. The defendant announced that it intended to open a location at Düsseldorf Airport in late autumn 2020 under the conditions that the staff had previously enjoyed. The plaintiff accepted the offer. Before the plaintiff started working, the defendant filed a mass redundancy notice with the employment agency in Düsseldorf and terminated the employment relationships of the employees working in Germany, including the employment relationship with the plaintiff.
The plaintiff claimed that the dismissal violated the prohibition of dismissal under Article 613a(4) of the BGB (1), as the defendant was seamlessly continuing the wet-lease operation of his former employer.
The Arbeitsgericht Düsseldorf (hereinafter ‘the Court of First Instance’) as the court seised under Article 20(1) and Article 21(1)(b) of the Brussels I Regulation (recast) (2) dismissed the action.
The Court of First Instance stated that KSchG (3) was not applicable. Pursuant to Article 23(1), third sentence, of the KSchG, the provisions of the first section of this Act do not apply to employees whose employment relationship began after 31 December 2003 in companies and administrations in which ten or fewer employees are generally employed. The employment relationships of no more than ten employees were established with effect from 15 September 2020. The scope of protection of the KSchG in connection with a possible transfer of business was not open. It was irrelevant whether and when the transfer occurred, as the transfer only took place after the plaintiff's notice of termination was received on 12 September 2020.
Contrary to the plaintiff's opinion, the dismissal was not socially unjustified within the meaning of Article 1(1) in conjunction with Article 1(2) of the KSchG. Due to the closure of the plaintiff's location, there were urgent operational requirements. A social selection was not necessary as all employees working in Germany were dismissed.
(1) Bürgerliches Gesetzbuch (German Civil Code).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(3) Kündigungsschutzgesetz (Unfair Dismissals Act).