Termination without notice due to participation in "wildcat" strike

Participation in strikes that are not organized by a union (so-called "wildcat strikes") constitute a breach of the main obligation under the employment contract and may justify extraordinary termination. This follows from a ruling by the Berlin-Brandenburg Regional Labor Court dated April 25, 2023 (Case No. 6 Sa 868/22).

Facts

The defendant operates a bicycle delivery service under the name Gorillas. At the beginning of October 2021, several employees had gathered in front of individual branches of the delivery service and protested. This involved blocking the access to stores and turning delivery bikes upside down. The strike action was not unionized. Gorillas had then issued termination letters without notice due to participation in the "wildcat strike". Three employees filed a complaint.

Reasons for the decision

Like the first instance, the Berlin-Brandenburg Regional Labor Court also ruled in favor of the company. According to the Regional Labor Court, participation in "wildcat strikes" was to be regarded as a significant breach of duty under labor law. It could not be assumed that non-unionized protest actions could be considered a permissible exercise of the right to strike under Article 9 (3) sentence 1 of the Basic Law (Grundgesetz, "GG"). This was also not the case against the background of the European Social Charter (RESC). The dismissals of the employees involved in the strikes were effective.

Note for practice

The autonomy of collective bargaining resulting from Article 9 (3) GG includes industrial action as a way of resolving conflicts of interest that cannot be resolved in any other way (cf. BAG June 7, 1988 - 1 AZR 372/86). But this does not allow employees to express their protest in the event of disagreeable working conditions or even employer decisions by laying down their work.

At first glance, nothing else can be derived from the wording of the right to strike under European law. According to Part II, Art. 6 No. 4 of the Revised European Social Charter (RESC), in order to ensure the exercise of the right to collective bargaining, the contracting parties undertake to recognize the right of employees and employers to take collective action, including the right to strike, in the event of conflicts of interest by the member states. Thus, the European legal framework also presupposes a reference to "collective action." It is disputed whether this also includes, as in the present case, collective measures without union participation. While the German labor courts have taken a clear position here and rejected the legality of "wildcat strikes," the situation is not quite so clear at the European level. The European Committee of Social Rights had denied the German right to strike conformity with European law against the background of Part II Art. 6 No. 4 RESC. The requirements that a group of employees had to meet in order to form a "trade union" constituted an excessive restriction of the right to strike. This also applied with regard to the "German" prohibition of all strikes that were not aimed at achieving a collective agreement (cf. European Committee of Social Rights, Conclusions XXI-3 - Germany - Article 6-4). The Federal Government, in turn, did not consider itself obliged to follow this recommendation, citing the 1988 case law of the Federal Labor Court cited above (cf. BT-Drs. 13/11415, 18).

The Regional Labor Court probably nevertheless did not allow the appeal on the basis of the "established case law". This means that, in addition to the appeal against non-admission, there is still the option of "going to Karlsruhe". It remains to be seen whether these paths will be taken.

For the time being, nothing will change for employers: Participation in a "wildcat strike" is a reason for dismissal.