Works Council Initiators Not Protected in First Six Months of Employment, LAG Munich Rules

Quick Hits

• The Munich Regional Labor Court (LAG Munich) ruled that employees who take steps to establish a works council within the first six months of employment are not entitled to special protection against dismissal under Section 15 (3b) of the German Unfair Dismissal Protection Act (KSchG).
• The LAG Munich overturned a lower court’s decision, stating that special protection against dismissal only applies after the first six months of employment.
• The LAG Munich also found that the employee forfeited any special protection against dismissal by not disclosing the notarized declaration within a reasonable timeframe.

Case Background

The employee was hired by the employer as a security guard on March 7, 2024. Just a few days after starting work, on March 13, 2024, he had a “declaration pursuant to Section 15 (3b) KSchG” notarized, in which he expressed his intention to establish a works council at the company. On March 20, 2024, approximately two weeks after his hiring, the employee inquired by email with an employee of the employer about the existence of a works council and stated that he intended to establish one if none already existed. To this end, he requested a list of employees eligible to vote.

The following day, he had been dismissed during his probationary period. He then filed an unfair dismissal claim on April 9, 2024. But it was not until his written statement of October 15, 2024, that he mentioned the existence of the notarized declaration of his intention to establish a works council. He argued that the dismissal is unfair because it presents an obstruction of works council elections (Section 20 (1) German Works Constitution Act) and constitutes an improper disciplinary measure (Section 612a German Civil Code). He also claimed special protection against dismissal for initiators of works council elections (Section 15 (3b) KSchG).

The employer argued, among other things, that the employee could not claim protection against dismissal under Section 15 (3b) KSchG, as this only came into consideration after the expiry of the waiting period (first six months of employment) pursuant to Section 1 (1) KSchG. In addition, the employer argued that the employee had only submitted the notarized declaration months after filing the lawsuit, so that his entitlement to special protection against dismissal was forfeited.

The Munich Labor Court upheld the claim in the first instance. It stated that the factual requirements of Section 15 (3b) KSchG were met and that the provision did not contain any temporal reservation of application. Nor was the employee prevented from claiming special protection against dismissal at a later date, as the provision did not specify a time limit for this either.

LAG Munich’s Decision

However, the LAG Munich overturned the Munich Labor Court’s ruling.

It stated that a proper interpretation of Section 15 (3b) KSchG leads to the conclusion that the special protection against dismissal under this provision only applies to dismissals within the temporal scope of application of the KSchG (i.e., after the first six months of employment). According to the LAG Munich, that is already clear from the wording, since Section 15 (3b) KSchG is based terminologically on Section 1 (2) sentence 1 KSchG when the provision states that dismissals are to be excluded if they are based on reasons “relating to the person or conduct of the employee.” However, no reasons for termination are required for terminations during the first six months of employment (i.e., the waiting period pursuant to Section 1 (1) KSchG), so that such a terminological reference would not make sense otherwise. This interpretation is supported by the fact that the remaining paragraphs of Section 15 KSchG generally exclude ordinary terminations (for any reasons). In contrast, the legislator did not want to generally exclude the possibility of ordinary termination for so-called “preliminary initiators” of works council elections.

In addition to that, the LAG Munich also found that the employee had lost any such special protection against dismissal because he did not inform the employer of the existence of a notarized declaration pursuant to Section 15 (3b) KSchG until more than six months after the notice of dismissal had been given. The LAG Munich admitted that the law does not specify an explicit duty of disclosure or any deadlines for such disclosure by the employee. However, it referred to the comparable situation in the case of special protection against dismissal for severely disabled persons, in which the timeliness of the claim is linked to the three-week deadline specified in Section 4 sentence 1 KSchG. The time limit of only three months for special protection against dismissal pursuant to Section 15 (3b) KSchG must also be considered. However, the employee did not invoke his special protection against dismissal within three weeks nor within three months and, against this background, lost it.

Since the underlying legal considerations that were relevant for the decision, in particular regarding Section 15 (3b) KSchG, are of fundamental importance, the LAG Munich has allowed an appeal to the Federal Labor Court.

Practical Relevance

With this decision, the LAG Munich shows that special protection against dismissal in connection with “works council activities” is not limitless. It differentiates between Section 15 (3b) KSchG and the wording of the other paragraphs of Section 15 KSchG and points out the special position of the so-called preliminary initiators. Regardless of the fact that the chronological sequence of the employee’s actions in the case in dispute certainly raises questions, the LAG Munich correctly considers the purpose of the waiting period under Section 1 (1) KSchG, which is to allow for a trial period, and reconciles this with the right of the workforce to establish a works council. It points out that it is not an unreasonable restriction for an employee to wait until the waiting period has expired before attempting to establish a works council, especially since it usually takes some time to get to know the interests of the workforce and find fellow campaigners.

The LAG Munich’s comments on forfeiture are also appropriate. In particular, the parallel to special protection against dismissal for severely disabled people is obvious. The LAG Munich correctly refers here to the case law of the Federal Labor Court (judgment of September 22, 2016, Ref.: 2 AZR 700/15), which has already established that invoking special protection against dismissal—if it is unknown to the employer—is subject to forfeiture.

However, it remains to be seen whether the Federal Labor Court will also have the opportunity to comment on this in the context of an appeal.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border and Employee Benefits and Executive Compensation blogs as additional information becomes available.

Tatjana Serbina is counsel in Ogletree Deakins’ Berlin office.

Eybe van Loeper is a law clerk in the Berlin office of Ogletree Deakins.

Pauline von Stechow is a law clerk in the Berlin office of Ogletree Deakins.