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Shifted or not shifted - that is the question here

After the labor court dismissed the security guard's complaint, he appealed to the state labor court. A decision was issued there on February 12, 2021.


The security guard is given a full-time contract

Since 2010 he has been working in a marginal job as a jumper in property security. At the end of 2014, he tried to get a full-time employment contract.
In mid-December he signed such a contract. After that he should be on
On January 2nd, 2015 start working full-time as a "district driver in the mobile security service".
 

The security guard does not work as a police officer

An employee in a guarded object of the employer unexpectedly fell out. Therefore, he decided to use the security guard - contrary to the agreement in the employment contract - exclusively on this guarded object from the start.
 

The security guard wants a fare allowance

The general collective agreement for security services in North Rhine-Westphalia is to be applied to the employment relationship. According to this, employees are entitled to a travel allowance if the employer moves them to an object that is more than 30 km away from their place of residence.
The distance between the object where the employer deployed the security guard and his home is 89 kilometers.


The employer refuses

First, he paid the tariff allowance for the fare. This item is only missing in the security guard's statement for January 2020. Because the employer is of the opinion that he did not transfer the security guard at all. After all, the security guard had already been employed at the property 89 kilometers away from the first day of his full-time employment.


The regional labor court decides

First of all, the judges of the second instance point out that it does not matter where or with what the security guard was employed before he signed his full-time employment contract. The only decisive factor is what he has committed himself to in this contract.
For a transfer it is necessary, on the one hand, that there is an activity that was previously carried out and owed by an employment contract. On the other hand, the transfer must lead to a future, newly assigned job.
The regional labor court is of the opinion that this requirement has been met.
The formerly "exercised" activity was that of a "district driver in the mobile security service". The future, newly assigned work, on the other hand, is to be carried out on a single, specific guard object.
 
The fact that the security guard did not work as a patrol driver for a single day does not change that. Because at least for one ". . . logical second to start work on January 2, 2015. . . " the security guard was obliged to work in the mobile station service. This only changed at the instigation of the employer. This means that the security guard has been transferred.
 

The security guard is happy

The regional labor court assumed that the employer had transferred his employee. So all collective agreement requirements for the fare subsidy are met. Therefore, the security guard can look forward to an additional payment of over 1301.94 euros plus the accrued interest for the months from January to April 2020.
 

LAG Hamm February 12, 2021 AZ: 1 Sa 1173/20