Hamm Regional Labor Court sees mediation as a recognized instrument for permanently resolving internal conflicts
The Hamm Regional Labor Court (case no. 17 SA 696/15) has ruled that an employer must “at least offer to conduct a mediation process” before giving notice of termination to the conflicting parties.
The dismissal without notice was preceded by a conflict between a teacher, who had been appointed acting head teacher at a vocational college, and the teaching staff. A meeting convened by the management of the vocational college between the parties involved in the conflict was unsuccessful. As a result, the management felt compelled to dismiss the teacher without notice. The Regional Labor Court overturned the termination without notice, stating that
“It [note: the management] should have at least offered the parties to the conflict the implementation of a mediation procedure beforehand. As follows from Section 1 (1) and (2) Mediation Act, mediation is a structured, voluntary procedure for the constructive resolution of a conflict in which independent third parties accompany the conflicting parties in their resolution process. The parties attempt to reach a joint agreement that meets their needs and interests. The impartial mediator does not make any decisions regarding the conflict, but is only responsible for the process. In accordance with Section 2 (3) sentence 1 Mediation Act, the mediator is equally obliged to all parties. Mediation is a recognized instrument that can be suitable for permanently resolving internal conflicts (Henkel/Göhler, AuA 2014, 703, 705; Hunold AuA 2015, 216, 217). It can be left open whether the defendant could have obliged the parties to the conflict to participate in the mediation procedure by issuing instructions (negating LAG Nuremberg 27.08.2013 – 5 TaBV 22/12 – para. 20; subsequently BAG 30.06.2015 – 1 ABR 71/13 – para. 25). It is conceivable that employees could be obliged to take part in informative discussions about the meaning and purpose of mediation (Henkel/Göhler, AuA 2014, 703; Hunold AuA 2015, 216, 217). The defendant did not even offer the mediation process. The confidential mediation procedure, which was structured by a neutral third party with appropriate training, was not futile simply because the parties to the conflict did not reach a constructive position towards the other party to the conflict in the discussion led by the managing director of the defendant on October 22, 2014. The managing director was not a neutral person, as she herself was decisively involved in the dispute.”
As a result, the Higher Labor Court reinforces the use of mediation as a method of internal conflict resolution. Employers are therefore recommended to at least consider other forms of consensual conflict resolution before issuing a dismissal – without notice.
The appeal to the BAG has been admitted.
You can find a link to this decision on our case law page.
