Regional Labor Court Mecklenburg-Vorpommern, ruling of July 30, 2019, 5 Sa 233/18
It is up to the employer to decide how to react to a conflict situation in the company, regardless of the causes and responsibilities of the disputants.
The parties dispute over the validity of transferring the plaintiff to another workplace to resolve an interpersonal conflict.
The plaintiff has been employed by the defendant as a cook in a nursing home since 1990 and has been considered severely disabled with a degree of disability of 50 since September 2013. The employment contract does not contain any provisions regarding a transfer and does not specify a place of work.
In accordance with the employment contract, the employment contract guidelines of the „Diaconian Association of the Protestant Church in Germany“ („Diakonisches Werk der Evangelischen Kirche in Deutschland“), as amended from time to time (hereinafter referred to as "AVR-DD"), apply to the employment relationship between the plaintiff and the defendant. According to these guidelines, a prior hearing of the employee is required in case of a change of the workplace.
The relationship of the plaintiff to the superior kitchen manager and the rest of the kitchen team at her prior place of work has been described for several years as "broken". In May 2015, a renewed dispute arose between the kitchen manager and the plaintiff. The stumbling block was the (alleged) disobeying of instructions by the plaintiff. Since then the plaintiff has been incapacitated for work. In order to resolve the conflict, the plaintiff was transferred to another site of the defendant - without the "culprit" having been identified or the plaintiff having been heard beforehand.
With the lawsuit, the plaintiff sought a declaratory judgment that the transfer is invalid.
The Local Labor Court („Arbeitsgericht“) of Stralsund dismissed the complaint in the lower instance with its decision of September 4, 2018 (13 Ca 227/17). The transfer of the plaintiff was in accordance with fair discretion and was lawful.
The Regional Labor Court („Landesarbeitsgericht“, „LAG“) Mecklenburg-Vorpommern dismissed the appeal of the plaintiff as unfounded. The transfer to another site was effective and did not violate § 106 German Trade, Commerce and Industry Regulation Act („Gewerbe Ordnung“, „GewO“), § 315 German Civil Code („BGB“) or the AVR-DD.
According to the Regional Labor Court Mecklenburg-Vorpommern, the transfer without prior consultation of the employee violates the AVR-DD, but this does not make the transfer invalid. The employer bears the risk if - due to the lack of a hearing - he does not sufficiently consider the interests of the employee which are not known to him and therefore a transfer has not been carried out at his discretion within the framework of judicial review.
After weighing up the mutual interests, the defendant has a legitimate interest in the transfer. It was up to the employer to decide how he would react to conflict situations. He does not have to first clarify the causes and responsibilities for the conflicts in detail. In particular the employer has also a justified interest in dissolving existing conflicts, in order to ensure a smooth production process and harmonious working conditions.
In the present case, the existing conflict between the plaintiff and the kitchen manager as well as other employees would also stand in the way of a smooth production process and harmonious working conditions.
The interests of the applicant had been sufficiently taken into account and did not stand in the way of a transfer.
The decision is to be welcomed, as it protects the interests of employers in a rapid restoration of harmonious working conditions and productivity.
In principle, employers can transfer employees to another place of work within the scope of their right of direction according to § 106 GewO, unless this has been clearly stipulated in the contract or a transfer reservation has been agreed (see BAG [Federal Labor Court, „Bundesarbeitsgericht“, „BAG“], ruling dated August 28, 2013, 10 AZR 569/12). The exercise of the right of management must be carried out according to equitable discretion, taking into account the mutual interests, § 315 BGB (see BAG, ruling dated October 24, 2018, 10 AZR 19/18).
If a conflict situation arises, it is initially up to the employer to provide evidence of this. The mere assertion of an internal conflict is not sufficient (see LAG Düsseldorf, ruling of July 31, 2018, 3 Sa 130/18).
However, it is then - according to the BAG - up to the employer to decide how to deal with the conflict situation (see BAG, ruling dated October 24, 2018, 10 AZR 19/18). The employer is not required to issue a warning to the contracting parties beforehand, since a warning often does not bring the desired improvement in work processes (see BAG, ruling dated April 24, 1996, 5 AZR 1031/94). The Regional Labor Court Mecklenburg-Vorpommern goes a step further in its decision and judges that the employer is not even required to first get to the bottom of the causes and responsibilities of the conflict that has arisen. So it is possible to transfer also "the wrong one", i.e. possibly "the innocent victim" of the conflict.
The Regional Labor Court Berlin-Brandenburg joins the decision, with explicit reference to the Regional Labor Court Mecklenburg-Vorpommern, in a more recent decision from October 2019 (see LAG Berlin-Brandenburg, ruling of October 2, 2019, 20 Sa 264/19).
The BAG had already decided that the failure to comply with the duty to consult does not lead to the transfer being illegal, in the case of § 4 Para. 1 S. 2 „Collective Bargaining Agreement for the Public Service“ („Tarifvertrag für den öffentlichen Dienst“, „TVöD“; see BAG, ruling dated May 24, 2018, 6 AZR 116/17) and § 4 S. 3 „Collective Bargaining Agreement Real Estate dated on the year 1998“ („Mateltarifvertrag Immobilien 1998“, „MTV Immobilien 1998“; see BAG, ruling dated October 18, 2017, 10 AZR 330/16). The decision of the Regional Labor Court Mecklenburg-Vorpommern complements these decisions. Despite this, employees should be heard beforehand in the context of a transfer if there is a duty to be heard, otherwise there is a risk that the interests of the employee have not been sufficiently considered, § 315 BGB.