Former bike couriers from the Gorillas food delivery service, who the startup fired without notice last year for “wildcat strikes”, wanted to force the court to modernize the right to strike.
However, they failed with this project before the Berlin Labor Court.
The court dismissed the unfair dismissal lawsuits of three plaintiffs on Wednesday.
The labor court thus rejected a change in the case law on “wildcat” strikes, as requested by the plaintiffs.
A central point of contention in the proceedings was whether a strike can be permissible if it is not organized by a union.
The Labor Court did not agree with the plaintiffs' view.
Participation in a strike is only legal "if it is supported by a union," the court said on Wednesday.
Katja Gelinsky
Business correspondent in Berlin
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The plaintiff Duygu Kaya, on the other hand, had demanded that the German right to strike had to be "adjusted in line with the times".
One of her lawyers, Benedikt Hopmann, criticized: “Germany has the most backward and restrictive right to strike in Europe.
In most European countries, the gorilla strike would have been a normal industrial action.”
Hopmann announced that he would appeal the verdict.
If necessary, they will go to the European Court of Human Rights in Strasbourg to enforce a better right to strike.
The 33-year-old Duygu Kaya, who came to Germany from Istanbul in 2018, went on strike in Berlin in the summer of 2021 together with other gorilla couriers.
“Our wages have been stolen.
We were constantly understaffed and put on lunatic and illegal shifts," the plaintiff said in a statement.
Several delivery warehouses of the startup, which delivers to almost two dozen German cities and eight other countries, have been paralyzed.
Unions in a dilemma
The strikes and blockades supported by Berlin's alternative left scene were not unionized.
Gorillas had repeatedly asked the strikers to resume work.
When that didn't happen, the company responded with extraordinary terminations without notice.
According to the Verdi union, around 350 bicycle couriers have been dismissed.
In the letter of termination from a courier, which the FAZ has received, the company did not provide any information about the "good reason" that requires termination without notice.
When asked, a company spokesman later pointed out that the non-union strikes were illegal.
Employees have a fundamental right to strike, which the courts derive from the freedom of association (Article 9 Paragraph 3 of the Basic Law).
According to case law, however, strikes are only permissible if a union calls for workers to stop work or takes over the strike afterwards.
The Verdi union had rejected such a subsequent legalization in the case of the gorilla couriers.
Unions find themselves in a quandary in the case of so-called wildcat strikes.
On the one hand, Verdi was outraged by the dismissals of workers fighting for better working conditions.
On the other hand, the legal situation, which has now been confirmed by the Berlin Labor Court, strengthens the position of the trade unions.
The plaintiffs, on the other hand, objected to the linking of the right to strike and collective bargaining autonomy.
As a result, the trade unions would be "instrumentalized as a regulatory power," they argue.
The root of the right to strike is "the violation of the law and not the order".
Employees do not have a German passport
The Federal Labor Court sees it differently.
The Supreme Labor Court ruled that "wildcat strikes" were illegal in 1963 - with the result that taking part in a non-union strike can constitute "good cause" for immediate dismissal.
Attorney Hopmann points out that this restrictive reading of the right to strike was largely shaped by the then President of the Federal Labor Court, Hans Carl Nipperdey, one of the leading labor law experts during the National Socialist era.
The plaintiffs also argue that German case law on the right to strike contradicts the European Social Charter.
There it is recognized that the right to strike is a right of workers, not a right of trade unions.
It is therefore necessary
The plaintiffs' strike was organized by the Gorillas Workers Collective, which represents the interests of bike couriers.
Duygu Kaya criticized the unions for abandoning precarious workers like the gorilla couriers.
Most of the employees do not have a German passport, many come from southern Europe and countries of the Global South.
According to the Gorillas Workers Collective, many have temporary residency permits linked to existing employment contracts or temporary visas.
After the strikes, Gorillas Germany admitted that there were problems, but assured that solutions were being worked on.