Termination of an employee in parental leave due to restructuring: Who is allowed to do what and when?

The notice of termination can only be legally valid if the court’s consent is obtained beforehand. If the enterprise has already been closed down, this requirement does not apply.

Facts of the case

Since May 2003, the defendant had been working as a key account manager at a company established in Austria. Since the end of her maternity leave, she was in parental leave and was subsequently placed off duty. The claimant argued that, as a result of restructuring in April 2014, the entire key account management at that location has been dissolved. She therefore sought the approval of the court regarding the termination.

Due to the restructuring and the dissolution, in Austria there should be only one showroom of the company. The employment relationship with the defendant has been skipped by a (partial) transfer of undertakings to the claimant. It is not reasonable for the claimant to create a replacement work for the defendant in Austria.

Approval of the court

The court is only entitled to give its consent for termination if the employer cannot continue to maintain the employment relationship due to a restriction or decommissioning of the enterprise or the decommissioning of individual operating departments. A further reason is if the employee agrees to the termination before the court. A close-down presupposes that the organizational unit as such is no longer permanent. After the decommissioning of the enterprise, an approval of the court is not required.

Requirement for termination

The claimant refers, on the one hand, to a (partial) transfer of undertakings or a transfer of the employment relationship and, on the other hand, to the change in the organizational unit. Thus neither a restriction nor a decommissioning of the enterprise within the meaning of Article 10 paragraph 3 of the MSchG is asserted. Even if the claimant refers to an enterprise which has already been closed-down, or to a mere showroom, even in this case the claim would be unjustified. Pursuant to Article 10 paragraph 3 fourth sentence of the MSchG, this also does not require the court’s consent to termination. The claimant did not underpin her request on any other grounds.

Source: Supreme Court

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