The Supreme Court decision 8 ObA 24/26a of August 19, 2026, addressed the question of whether a member of the executive board of an association is subject to the protection against termination and dismissal under works constitution law provided for in §§ 105 et seq. of the Works Constitution Act (ArbVG).
The plaintiff was the head of the emergency medical services and, at the same time, a member of the executive board. Following his dismissal, he invoked the protection against termination and dismissal under §§ 105 et seq. of the ArbVG. He argued that he had merely been a “deputy” to the regional managing director and had no independent decision-making authority.
The Supreme Court ruled that those members who, according to the association’s bylaws, are granted powers of representation do not fall under the definition of “employee” under works constitution law pursuant to § 36(2)(1) of the ArbVG. What is decisive is the formal power of representation vis-à-vis external parties, not the member’s actual decision-making authority.
Therefore, members of an association’s executive board generally do not enjoy protection against termination and dismissal under §§ 105 et seq. of the Labor Organization Act (ArbVG), just as managing directors of a corporation or senior executives do not under § 36 of the Employment Act (AngG).
The KWR Labor Law Team is happy to assist you.
