It often comes unexpectedly and then hits all the harder: If your employer has given notice, you don’t have to accept it in all cases. The first and most important step is to question whether the termination is even effective in the sense of the Dismissal Protection Act (KSchG). For this purpose, the legislator has created the possibility of an action for protection against dismissal. In the court proceedings, it is checked whether the termination meets all basic and formal requirements to become effective.
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Give 3 weeks notice
The filing of an action for protection against dismissal is only possible within a period of three weeks.
Protection against dismissal for employees
Employees in larger companies have more security when it comes to dismissal. If there are more than ten employees in the company, there is a special protection against dismissal according to § 1 KSchG. However, a prerequisite for you to be able to claim this is that you have been employed at the company for more than six months prior to the notice of termination being issued. Prerequisite for a dismissal is here that it was pronounced due to personal, behavioral or operational reasons and is not socially unjustified.
For small companies with less than ten employees, this regulation does not apply in its entirety; here, an employee can be dismissed without social justification.
Employees with special protection against dismissal
In addition to employees in larger companies, who have improved protection against dismissal, there is a group of people who are also better off for personal or company reasons. This includes – partly under certain conditions – the following employees:
- Managing directors, plant managers and comparable senior executives
- Pregnant women
- Severely disabled
- Works councils
- those covered by collective bargaining agreements
- longstanding resp. Older employees
- Employees with a temporary employment contract
These employees cannot generally be given ordinary notice of termination due to special provisions. This does not mean, however, that non-conduct-related reasons such as a theft can result in extraordinary termination. The important reasons leading to termination despite existing protection against dismissal are derived from Section 626 of the German Civil Code (BGB).
This paragraph states that notice of termination can be given without observing a period of notice if there are facts that make the continuation of the employment relationship unreasonable. However, it always depends on the circumstances in each individual case. A review by a lawyer provides greater legal certainty for the employees concerned and offers a solid basis for any action for protection against dismissal that may need to be filed. Another prerequisite for termination without notice for cause is that the circumstances on which the termination is based must not have been known to the employer for more than two weeks.
Even a dismissal as a result of a business closure or other operational change is possible despite the special protection against dismissal. However, the employer or. Insolvency practitioners must comply with a number of legal requirements, such as conducting a reconciliation of interests.
Here, however, extraordinary termination does not mean the employee immediately loses his or her job. He is to be granted the so-called run-out period. It lasts at least as long as a regular cancellation would have taken. If only individual departments are closed, an extraordinary notice of termination with an expiration period is sometimes on shaky ground. In such a case, it must be examined whether a transfer to another workplace would be possible.
Reconciliation of interests in the event of termination
Despite all the good will on the employer’s side, it is sometimes not possible to avoid dismissals because operational changes are unavoidable. Then it is important that the company together with the works council, in the case of insolvency also with the insolvency administrator finds a solution that is fair to all parties involved. The subject of a reconciliation of interests is the questions of whether a change in operations is necessary at all and when and to what extent it can be implemented.
This reconciliation of interests then results in a social plan. In this context, it is worth knowing that a works council also has the right to hire a lawyer to advise it and participate in the reconciliation of interests and social plan. The costs for the assignment can be imposed on the company according to the Works Constitution Act (BetrVG).
Social plan against economic disadvantages
Once the reconciliation of interests has been established, the social plan is drawn up. It is intended to mitigate social and financial disadvantages caused by a change in operations and the necessary redundancies. Older employees, severely disabled employees and employees with children are given priority. A social plan is also the basis for severance payments to be paid by the company to employees who have been made redundant. For all criteria such as age, length of service, marital status, number of children, a point system is established. The social selection, which employees will be dismissed, is made on the basis of this point system.
Requirements for the action for protection against dismissal
If you wish to defend yourself against the termination or the date of termination of the employment relationship, you have the option of bringing an action for protection against unfair dismissal in accordance with Section 4 of the German Unfair Dismissal Act (KSchG). In this case, it is up to the labor court to determine whether the employment relationship has actually been or will be terminated by the notice of termination.
Attention deadline
An action for protection against dismissal must be filed with the labor court within three weeks of receipt of the written notice of dismissal!
It is therefore important that you seek legal advice immediately after receiving the notice of termination and weigh all the steps that are decisive for the success of the action for protection against dismissal. In principle, it is possible for employees to file the action for protection against dismissal without a lawyer and to represent themselves before the labor court. However, this approach is not recommended. You give up equal opportunity because your employer will seek legal assistance or has relevant experience ahead of you.
If there is a works council in the company, it is advisable to involve it in the dismissal protection proceedings. Pursuant to Section 3 of the German Unfair Dismissals Act (KSchG), employees may file an objection to the termination of employment with the works council within one week of receipt of the notice of termination. Your works council also knows about the social aspects in the company. This is important, for example, in order to make the correct social selection in the event of termination for operational reasons.
If the 3-week period for filing the action for protection against dismissal is missed, the dismissal is effective. Only in exceptional cases with valid reasons will the labor court accept a late claim for protection against dismissal.
Legal representation in dismissal protection proceedings
As already mentioned, employees are free to file an action for protection against dismissal themselves or to have it recorded at the office of the labor court. However, since much depends on the issuance of a notice of termination, self-representation is not always advisable. The outcome of the action for protection against dismissal may determine, for example, whether and when an entitlement to unemployment benefits arises.
The job center can refuse payment if the employee terminates the contract himself or herself on the basis of a termination agreement or does not vehemently object to a termination that may have been wrongful. A blocking period of three months is not unusual here. During this time, employees are no longer covered by social insurance if they do not pay their own contributions. Also, such a period may not be taken into account for the pension entitlement, so that disadvantages may also arise here.
Trade unions offer their members a first point of contact through the legal secretaries employed there. If the notice of termination has already been given, joining the union after the fact will not help. In this case – as with legal protection insurance – it applies to the confirmation of coverage that the claim may not already exist before the conclusion of a corresponding contract.
However, hiring a lawyer who is experienced in labor law or a specialist in labor law often represents a more individual representation with greater chances of success. It is also advisable to hand the matter over to a lawyer if the dispute over the termination cannot be settled in the first instance. If the works council is involved from the beginning, it knows all the details.
Action for termination in spite of withdrawal of notice
It may sound logical at first, but it is wrong: Even if the employer withdraws his notice of termination before the end of the employment relationship, the employee should not accept it without further ado. Those who waive their claims now may be left with nothing to show for it.
From a legal point of view, a notice of termination is a unilateral declaration of intent which must be received. It is already effective when it has been expressed to the employee in writing. For this reason, it can no longer be unilaterally withdrawn by the employer. A withdrawal of the notice of termination can therefore be no more than an offer by the employer that the employee can accept but does not have to accept. On the contrary, in some cases it makes sense to file an action for unfair dismissal first in order to meet the deadline. Then there is more time to negotiate the modalities for the continuation of the employment relationship.
A corresponding agreement must then be put in writing so that a new, legally valid contract is created. The content of such an agreement can be that the employment relationship will be continued under unchanged conditions and without interruption and that no other reasons for termination will be presented which would lead to a further termination within a short period of time.
Objection to the termination
Here an unexpected trap waits for employees: It is not at all sufficient to contradict a notice of dismissal – in writing or verbally – or to file an objection. Both ways are legally completely ineffective. This is also due to the fact that a termination is a unilateral declaration of intent. Only an action for protection against dismissal is effective in this case. Often the employee is offered a termination agreement by the employer. Before such a termination agreement is signed, it is imperative that all consequences are competently evaluated. Even if a termination agreement and a severance payment specified therein appear so tempting, signing it can become an own goal. This is particularly the case if there is no new job in sight and the job center has been suspended for three months – if applicable. even longer – a freeze on unemployment benefits is imposed.
However, the law does recognize one exception. If a works council is installed in the company, an objection in accordance with. § 3 KSchG. However, this objection must not be lodged with the employer or the direct superior, nor with the labor court, but with the works council. The works council then acts as an intermediary between employer and employee. It checks whether the dismissal was preceded by warnings or whether the necessary social selection was made.
However, the employer is not forced to respond to the reservation and the opinion of the works council. It is therefore important to observe the three-week deadline for filing an action for protection against dismissal in order to avoid any disadvantages.
Action for protection against dismissal: judicial review of the dismissal
In the context of an action for protection against dismissal, the labor court primarily determines whether the notice periods specified in Section 622 of the German Civil Code (BGB) were observed in the case of ordinary termination. If the employer has given notice of termination without notice, the labor court reviews whether this was justified or, if necessary, must be converted into an ordinary notice of termination. Termination without notice may only be given in the event of serious violations by the employee of his or her duties, including theft at the workplace, assaults on superiors or colleagues, and massive insults. In this case, a detailed statement of reasons is required in accordance with § 626 of the German Civil Code (BGB).
If the dismissal is pronounced because of other failures on the part of the employee, in most cases at least one, if not two, warnings are due. The employee must have been made aware of his misconduct before the termination, so that a later termination is legal. This requirement is also reviewed by the labor court in the course of the action for protection against dismissal.
If you, as an employee, have received a dismissal for operational reasons, it is up to the court to review the required social selection. Younger employees, those without family obligations or with a shorter period of service are placed behind older employees, parents and persons with many years of service in the social selection process. Works councils, people with disabilities and pregnant women may only be dismissed under special circumstances. In the context of the dismissal protection action, the court therefore examines whether the respective employee can be dismissed at all.
The course of the action for protection against dismissal
The dismissal protection procedure before the labor court is subject to a predetermined procedure. This precise regulation serves both sides.
The conciliation hearing at the labor court
If the action for protection against dismissal is accepted by the court, the next step is the so-called conciliation hearing. The aim is to reach an amicable agreement between the employee and the employer. In many cases, this is successful, for example, if the employer offers the dismissed person a severance payment. Agreement can also be reached on the date of the actual termination of the employment relationship. A later date, for example, offers the employee a chance to successfully seek an equivalent job in the event of an ultimately successful dismissal. At the same time, the competent judge gives an assessment of how he or she believes the subsequent proceedings for protection against dismissal will proceed.
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The chamber date
If no agreement can be reached in the conciliation hearing – or subsequent out-of-court negotiations – the labor court will schedule the so-called chamber hearing. Each chamber is staffed with the competent judge and two associate judges. The chamber hearing offers the opportunity to hear witnesses or the works council with regard to the termination. If more information needs to be obtained or other witnesses need to be heard, further chamber hearings are not ruled out. At the end of the last day of the hearing of the action for protection against dismissal, the judgment is rendered in the action for protection against dismissal; in the case of extensive presentations, a new date is set for the pronouncement of the decision. The parties no longer have to attend the pronouncement of the decision in person; the judgment rendered is sent to the parties in writing.
Note: If one of the parties or their representatives fails to appear without excuse at the conciliation hearing or the hearing in chambers before the labor court, a default judgment is rendered. The legal consequences are equivalent to a full judgment.
Legal validity of the judgment of the action for protection against dismissal
With regard to costs, there is a special feature in the labor court: Here, each party bears the court and attorney’s fees incurred itself, regardless of the outcome of the case. If the employee has legal expenses insurance or is a member of a trade union, under certain conditions the union can cover the costs incurred.
You have the right to appeal against a decision in an unfair dismissal case within one month of notification. However, the following prerequisites are necessary for this:
- The appeal was admitted in the final judgment.
- The existence or non-existence or. the termination is the reason for the legal dispute.
- A default judgment is issued against which an objection was not admissible and the subject of the appeal is the culpability of the default.
If the appeal is to be filed because new facts are to be included in the decision, this is only possible within the scope of § 67 ArbGG.
The more comprehensively and carefully you collect everything that speaks against the termination of the employment relationship, the more successful your legal representation will be in the process.
Action for Protection against Dismissal – Important Knowledge in Detail
Finances play an almost greater role in proceedings for protection against unfair dismissal than in other proceedings. Those who are in danger of losing their jobs pay particular attention to the costs they will incur in view of the uncertain situation. Also of interest is the question of severance pay, which is often a topic in lay circles, but usually without expert knowledge. And many an employee looks forward to the positive outcome with mixed feelings: What happens if I keep my job??
Attorney fees and court costs of the dismissal protection action
Since in proceedings for protection against dismissal, unlike in proceedings before the local or regional court, each party bears its own costs regardless of the outcome of the proceedings, many employees focus on the question of the amount of these expenses. If you have a legal protection insurance policy that includes labor law, you are usually in the clear. However, if the contract was concluded with an excess, surprises could await the insured: If the employee was possibly already represented by a lawyer because of a warning received, then in the dismissal protection proceedings and is subsequently still represented by a lawyer because of the issuance of a certificate or the. Testimony correction a dispute necessary, so the deductible may occur three times. All three legal processes must be considered separately.
Employees whose financial resources are tight can, under certain conditions, apply for legal aid for the action for protection against dismissal. The attorney’s fees are then advanced by the state treasury, and whether they have to pay them back in installments or are waived altogether depends on their future income over a certain period of time.
Important: The application for legal aid, together with all the documents required for it, should be submitted before the action is brought, or. be made at the latest with this. Please ask your lawyer about your financial situation at the first meeting.
The costs that can be charged by the lawyer and the court are determined by the amount in dispute. In the case of actions for protection against dismissal, the amount in dispute is three months’ gross salary. If other points such as severance pay, Christmas bonus payment or the reference grade are also settled as part of the court or out-of-court settlement, the amount in dispute increases by specific amounts or. a further monthly salary. Based on a set table, the following fees are incurred for representation before the labor court:
- Procedural fee – arises with the filing of the action for protection against dismissal
- Appointment fee – for attending or preparing a court hearing
- Settlement fee – it is only incurred if a settlement is reached
In addition to the lawyer’s fees, there is also a flat rate for expenses and, if incurred, travel expenses and writing expenses as well as 19% VAT.
With regard to court costs, the generally known rule remains the same before the labor court: He who loses pays. If a settlement is reached, neither party has to pay court costs. However, an advance on the court costs is not demanded. The amount of court costs, usually two fees, the lawyer’s fees are calculated according to the amount in dispute.
Severance pay for terminated employees
If an employee is terminated for operational reasons, the topic of severance pay is obvious. If the dismissal takes place in the context of a social selection and the social plan belonging to it, the compensation is usually exactly defined according to the height. Severance pay may also already be regulated in collective bargaining agreements or individual employment contracts. If there are no agreements regarding a severance payment, it depends on the individual case and the negotiating skills of the lawyer.
Attention: Do not sign a settlement declaration without prior review. Anyone who is presented with a severance agreement together with their notice of termination tends to sign it. However, this severance agreement retains its legal validity, irrespective of the outcome of the action for protection against dismissal.
It is better to ask for a few days to think it over in case the employee wants to sign the severance declaration. Legal advice can save money, because every settlement amount has consequences. There are advantages and disadvantages in terms of taxation; those who do not find a new job may have to reckon with the severance payment being offset against unemployment benefits. Therefore, not only the severance payment itself, but also the amount of the severance payment must be carefully scrutinized. Within the limits of offsets, it may be the case that more money remains on the bottom line from a somewhat lower sum.
Among acquaintances, people often discuss completely exaggerated severance amounts that have little in common with reality. If the severance payment and its amount are the subject of the termination dispute, the court often suggests half a month to one month’s gross salary per year of employment. In cases of particular hardship and in certain professions, a higher severance payment can be negotiated individually with the appropriate negotiation tactics.
Continued employment after winning an action for protection against dismissal
Many employees have mixed feelings not only about the dismissal protection process, but also about the time afterwards. This is understandable, because going back to the company where you were laid off requires self-conquest.
In the motions in the dismissal protection lawsuit, there is usually wording demanding continued employment and that the court find that the employment relationship continues unchanged. These are protective clauses that primarily entail that wages or salary are paid even during the duration of the lawsuit, or that the employee has to be paid back. must be paid in arrears for the entire period under certain conditions.
However, the relationship of trust between the employee and the employer is likely to be permanently disturbed by the dismissal. In most cases, therefore, the continuation of the employment relationship is no longer desired at all by one side or the other. The labor court has the option of declaring the employment relationship terminated at the point in time at which it would have been terminated if the notice of termination had been effective.
In these cases, the plaintiff’s side can file a motion for severance pay to be paid by the employer. The employer, in turn, also has the possibility of having the employment relationship terminated by the court at a certain point in time, for example, if behavioral reasons had led to the issuance of the notice of termination.
It is often the case that – irrespective of the outcome of the case – employees are already looking for a new job. If this effort has been successful, employees can make a declaration within one week after the judgment has become final, which includes refusing to resume the employment relationship. Disadvantages are not to be expected in this case, nor can damages be claimed from the employer.
It is also common practice for employees to be released from work until the time when their employment is terminated. Although unused vacation days are then included in the calculation, wages and salaries continue to be paid until the termination date despite the leave of absence.
Anyone who has found a new job must report this to the employment agency so that there are no demands for repayment.