Mein Arbeitgeber hat mir wegen der Coronakrise eine Vertragsänderung wegen Kurzarbeit angeboten, die ich aber nicht annehmen möchte. Welche Folgen hat das für mich? Kann mir mein Arbeitgeber dann aufgrund des Wegfalls des Arbeitsplatzes schneller kündigen?
Kurze Frage – kurze Antwort:
Grundsätzlich kann in Fällen, in denen Kurzarbeit weder durch arbeitsvertragliche Vereinbarung noch durch eine Betriebsvereinbarung (mangels Betriebsrat) angeordnet werden kann, der Ausspruch einer Änderungskündigung in Frage kommen.
Der Arbeitgeber könnte dann beispielsweise einem Mitarbeiter, der bislang 40 Stunden gearbeitet hat, jetzt aber nur noch 20 Stunden beschäftigt werden kann, den bisherigen Arbeitsvertrag über 40 Stunden kündigen und gleichzeitig einen neuen Vertrag über 20 Stunden anbieten.
Macht der Arbeitgeber von dieser Möglichkeit Gebrauch, muss er jedoch auch beweisen können, dass ihm ohne die Änderungskündigung zum Zwecke der Herbeiführung der Kurzarbeit erhebliche finanzielle Verluste entstehen würden, die ansonsten zur Entlassung von Mitarbeitern oder in die Insolvenz führen würden. Außerdem darf es ihm auch nicht möglich sein, anderweitig, die in seinem Betrieb anfallenden Kosten zu senken.
Der Arbeitnehmer hat dann folgende Möglichkeiten zu reagieren:
- uneingeschränkte Annahme des Angebots
- Annahme unter dem Vorbehalt der arbeitsgerichtlichen Ablehnung
- Ablehnung des Angebots
Kommt eine einvernehmliche Änderung nicht zustande, könnte der Arbeitgeber ausnahmsweise – wegen des gegenwärtig dringenden Handlungsbedarfs – eine außerordentliche Änderungskündigung aussprechen. Insbesondere dann, wenn er von den aktuellen Kontaktbeschränkungen derart betroffen ist, dass er ab sofort keinerlei Umsätze mehr tätigen kann. Allerdings müsste der Arbeitgeber dann die „Weiterbeschäftigung in Kurzarbeit“ anbieten.
In Anbetracht der Umstände wäre dies derzeit wohl die zweckdienlichste Vorgehensweise, da selbst bei Annahme der Änderungskündigung durch den Arbeitnehmer, die geänderten Vertragsbedingungen – die Anordnung der Kurzarbeit – erst dann wirksam werden, wenn die vertragliche Kündigungsfrist des Arbeitnehmers abgelaufen ist. Und das kann bei längeren Beschäftigungszeiten unter Umständen einige Monate dauern, bevor die Kurzarbeit dann tatsächlich angeordnet werden könnte.
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