For the employee, the employment relationship is regularly at the center of his or her own lifestyle, in addition to his or her family and other activities. Likewise, for the employer, dealing with his own workforce in a way that is as problem-free and factually sound as possible is an indispensable prerequisite for the functionality of his company.
In connection with the workplace, questions and necessities often arise that require clarification under employment law and legal representation.
We advise and represent you, among other things, in the following areas or. Matters:
- Individual employment law (relationship between employer and employee)
- collective labor law (relationship between trade unions, works councils/staff councils and employers/employer associations)
- Contract design
- Termination agreements
- Wage/salary claims, minimum wage
- Severance pay
- Rights and obligations under collective bargaining agreements
- Contractual/collective agreement preclusion periods
- Employment reference
- Warning
- Employee protection, protection against dismissal
The most frequent need for advice is in connection with the termination of an employment relationship.
The questions arise, on the employer side "can I terminate the employees" and on the employee side "what can I do against a notice of termination given to me". The employer must comply with certain requirements for dismissal. The employee, in turn, must file an action for protection against dismissal in good time, i.e. within a period of 3 weeks from receipt of the notice of termination, in order to protect his or her rights.
Termination of the employment relationship must be examined with regard to various points:
- Form
- Access
- Authorization to sign
- Period of notice (calculation of the period of notice)
- Termination without notice (period of notice observed) ?)
- Reasons for termination
- Warning
- Violation of protective regulations, protection against dismissal (special protection against dismissal, parental leave, severe disability, maternity protection)
- Possible works council participation or. Requirement for approval by the works/staff council
- Approval of the Integration Office
If the employer is no longer able to pay the wages, legal problems arise for both the employer and the employee.
The employee may be able to exercise a right of retention with respect to his own labor. If necessary, he must sue for his outstanding wages, whereby preclusive periods under collective agreements must often be observed.
Questions& Answers
Attorney at law Jochen Dotterweich answers important questions in advance, which one should know about the topic of dismissal.
What must be observed in the event of termination by the employer??
One can proceed against a dismissal with an action for protection against dismissal. Such an action for protection against dismissal must be filed with the locally competent labor court within 3 weeks of receipt of the notice of dismissal. If this deadline is missed, this means that the termination can no longer be challenged, regardless of its effectiveness .
It is advisable to have the effectiveness of each termination checked. Even if you do not want to continue working for your previous employer. We are happy to help you with the review of your notice of termination. If you have any further questions, please do not hesitate to contact us.
What are the requirements for a termination by the employer?
- Notice of termination must always be given in writing and must be received by the employee.
- At least one reason for termination is always required for a notice of termination.
- In particular, operational reasons and behavioral reasons can be considered as reasons for termination. Also a longer illness of the employee can be reason for a notice of dismissal.
- The employer must not only state the reasons for termination, but also prove them .
- Before a termination for conduct-related reasons, one or more warnings are usually required initially .
- The employer must also observe the contractual or. Comply with statutory period of notice. These deadlines are calculated wrongly again and again. For the timeliness of the termination and compliance with the notice periods, the time of receipt of the termination is always decisive.
- If a works council exists, it must be consulted prior to termination; the employer must also observe deadlines in this respect.
- In the case of an operational dismissal, the employer must carry out a social selection. This means that in the case of several comparable employees with comparable activities, it must be weighed up why one and not the other employee is being terminated.
We would be pleased to explain to you in detail under which conditions the termination of an employment relationship is possible and whether it is possible to successfully proceed against a termination by your employer.
Do I have to confirm receipt of a notice of termination by signature?
No. The employer must prove the receipt of a notice of termination .
By the way, some employers put an additional note on a letter of termination, which is presented to the employee for signing, according to which the employee not only confirms the receipt of the termination with his signature, but also waives his right to appeal against the termination . It will then be extremely difficult to still proceed against a cancellation.
That is why you should always seek legal advice before signing any notice of termination or other document. We are happy to advise you.
Why one should always have a termination by the employer legally examined?
If the notice periods are not observed in the case of a termination, the Federal Employment Agency threatens to block unemployment benefits for the period in which the notice period is shortened.
In the case of a behavior-related dismissal, the Federal Agency usually even imposes a blocking period of up to 3 months.
Since terminations based on conduct often do not stand up to scrutiny in the course of unfair dismissal proceedings, or since a termination based on conduct can be converted into an ordinary termination for operational reasons, I always recommend taking action against a termination based on conduct, in particular to avoid a blocking period.