Issue - Dismissal of a pilot
The claimant and the defendant airline had a dispute over the termination of the employment relationship due to unfitness for flight duties. The latter was established by an expert consultant after frequent short spells of ill health in the spring of 2015. As the claimant was not fully fit for shift work the option of a ground job was also eliminated. The claimant had refused to undergo an OIM process. In an appraisal interview, in which no personnel representative participated, no continued employment opportunities to which both sides could agree were identified.
According to the applicable collective agreement, unfitness for flight duties constitutes a resolutive condition for the employment relationship and thus terminates it. The claimant took legal action against this termination and maintained that there were other continued employment opportunities.
Decision - No proper OIM
The BAG, in its ruling from 17.4.2019 (case reference: 7 AZR 292/17), decided that the resolutive condition would be present and the employment relationship would be terminated only if there were no other continued employment opportunities for the employee who was unfit for flight duties. This could have been established through a proper OIM process.
However, in the case in question, OIM was not properly provided. Moreover, the defendant was not able to provide evidence that the following points had been adequately clarified for the claimant, namely, the objectives of OIM, the nature and extent of the data that are collected and used, the claimant’s right to choose between carrying out the OIM process with and without the participation of employee representatives. Therefore, in the absence of a proper invitation, the appraisal interview could not have constituted a proper OIM process. Therefore, the defendant was faced with an increased burden of presentation and of proof. The airline should have presented and analysed every conceivable continued employment opportunity as well as all the potential opportunities that had been suggested by the employee. Next, the airline should have explained in detail the reasons why the respective continued employment in a different job, or in a potential “job opening” could not be considered. The airline had not done this, which is why it could be presumed that there were continued employment opportunities and that the employment relationship had not ended.
Please note: Employers would be well advised to comply with the requirements for operational integration management and to carry out a proper OIM process in the run-up to dismissal on the grounds of ill health.