Case No 9 AZR 102/20 (2020)

Citation/case number: 9 AZR 102/20
Country: Germany
Year: 2020
Court: Federal Labour Court
Status: Determined

Topic/theme: Employment relationship
Issue: Unfair dismissal
Claimant type: Individual
Respondent type: Corporation
Legislation considered: German Civil Code, s 611a(1), 623; German Industrial Code, s 106

Factual background and procedural history

The claimant commenced working for the respondent, a crowdsourcing company which carried out checks on the presentation of goods in retail outlets or petrol stations for brand manufacturers, pursuant to a framework agreement dated 13 December 2016/6 February 2017. The claimant registered on the platform on 29 July 2016 and accepted his first paid job on 4 February 2017. He worked approximately 20 hours/week, mostly conducting "tool checks" at petrol stations and undercover "mystery checks". In the span of eleven months, the claimant fulfilled 2978 jobs and had a monthly average income of €1749.34.

On 10 April 2018, the respondent terminated the framework agreement via email. On 6 July 2018, the claimant filed a lawsuit at the Labour Court Munich. He argued that the framework agreement represented an employment relationship which could not be terminated by email, as section 623 of the German Civil Code required that the termination of employment be in writing, and not electronic form. The claimant argued that his employment should therefore still be ongoing. On 24 June 2019, the respondent took precautionary steps to terminate any possible employment relationship. The Labour Court dismissed the claimant's case, finding that there was no employment relationship in existence that could be terminated. A further appeal to the Regional Labour Court was also dismissed. The claimant subsequently appealed to the Federal Labour Court.

Key issues for determination

Was the claimant an employee within the scope of section 611a(1) of the German Civil Code, or an independent entrepreneur?

Finding

In order to determine whether the claimant was an employee or an independent entrepreneur, the court looked at section 611a(1) of the German Civil Code. This provision deals with the relationship of personal dependency. If an employee is obliged to perform work in service of another, such work is tied to instructions and determined by others and the right to issue instructions concerns the substance, implementation, time and/or place at which the activities are pursued, then the factual implementation of the contractual relationship shows that the relationship is an employment relationship. The designation used in the contract is then irrelevant.

Taking this into account, the court found that the framework agreement between the claimant and respondent did constitute an employment relationship. The claimant was personally obliged to provide the service, as only the individual who was registered in the app was allowed to complete the jobs. Furthermore, holding multiple accounts or the transfer of an account to another person was forbidden. The nature of the owed activity was simple, as the jobs did not require specific qualifications. Its execution was strictly predetermined both in terms of content, due to the specific explanations provided, and time, due to a limit of two hours for each job. Nevertheless, the awarding of the contract and specific use of the online platform was controlled by the claimant in the sense of an external determination. However, this did not point to any personal independency on the part of the claimant. Therefore, the general rules on proper termination under section 623 of the German Civil Code applied.

Outcome

The court held that the claimant was an employee within the scope of section 611a(1) of the German Civil Code, and was then properly terminated by the respondent's precautionary termination of 24 June 2019.

Link to Federal Labour Court judgment: 

https://www.bundesarbeitsgericht.de/en/entscheidung/9-azr-102-20/ 

Link to Regional Labour Court judgment

https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-2019-N-30311?hl=true 

Link to Labour Court Munich judgment:

https://www.arbg.bayern.de/muenchen/entscheidungen/neue/44075/index.php