Termination notice
Has your employment been terminated?
Here you will find information on the topics of termination and employment contract as well as warning and severance pay, which can serve as initial orientation and assistance. You will also find information on taking legal action against dismissal to the Berlin Labor Court or other labor courts and on representation by a lawyer for labor law.
What to consider?
If you have received notice of termination from your employer, you will have countless questions running through your head. Both regarding the termination itself, e.g. whether it is effective at all, as well as questions about how you should best behave now, for example vis-à-vis your employer or the employment agency.
Three-week
deadline
If the validity of an employer’s termination is not challenged within three weeks of receipt of the termination notice by filing an action for protection against dismissal with the Labor Court, the termination is deemed to be effective. There are only a few special cases in which the action for protection against dismissal is still exceptionally permitted by the labor court despite the expiration of the three-week period; this may be the case, for example, if the employee was unable to meet the deadline due to serious illness.
Under no circumstances may negotiations with the employer about a settlement of the employment relationship or even the possibility of a “withdrawal” of the termination be regarded as such an exceptional case justifying the admission of an action for protection against dismissal after the expiry of the three-week period. In other words, even during negotiations with the employer about the termination, no matter how constructive they may seem, the three-week period continues to run. Once this period has expired, the employer will hardly have any serious interest in continuing the talks. This is because the validity of the termination and thus the termination of the employment relationship can then no longer be challenged. Your chances of achieving a continuation of the employment relationship or receiving an appropriate severance payment, depending on your interests, would be lost.
Wrongful termination case ?
Call an English speaking employment lawyer now or write an email
Does representation by a lawyer and specialist in labor law make sense?
First of all, there is no general answer to this question. It always depends on the specific circumstances of the situation. It would certainly be exaggerated to immediately seek the help of a lawyer for every tension and every "little problem" in the employment relationship. However, if the existence of the job is threatened, a warning has been issued and/or a notice of termination has been given, then you should entrust yourself to an experienced attorney or specialist in labor law who will represent your interests in the best possible way and vigorously enforce them with consistency. For your economic independence and freedom, your employment relationship is a particularly valuable asset.
The right strategy for attacking a termination is rarely obvious. It requires a precise evaluation and legal investigation of the entire matter by a specialist. First of all, it is important to determine your wishes and goals. Tailored to this, the course of action for upcoming out-of-court negotiations and, if necessary, litigation should then be determined.
If you wish, I will guide and accompany you on this path with over 20 years of experience both in litigation before numerous labor and state labor courts and in successfully negotiating mutually agreeable solutions with employers.
Protection against unfair dismissal
For the termination of an employment relationship by the employer, the legislator has set quite tricky hurdles. On the one hand, this concerns formal requirements for the termination, such as – to name just a few – different notice periods, an obligation to hear the works council or staff council, the requirement for the termination to be in writing, or the two-week period for issuing an extraordinary termination, often without notice.
On the other hand, the law also imposes numerous substantial requirements for a lawful termination. A cornerstone of protection against dismissal is the Dismissal Protection Act (“Kündigungsschutzgesetz”), with far-reaching requirements for the justification of a socially justified dismissal.
In addition, there are numerous special regulations to protect against unfair dismissal, such as regulations to protect severely disabled persons or the Maternity Protection Act to protect expectant mothers during pregnancy and for some time after the birth.
This list of examples already makes it clear that the termination of an employment relationship is a thoroughly error-prone undertaking for the employer. It is therefore worthwhile in most cases to check the effectiveness of a termination and to defend oneself against an unjustified termination.
Protection against Dismissal
1. General protection against dismissal according to the Dismissal Protection Act (“KSchG”)
One speaks of a "protected employment relationship" within the framework of the Dismissal Protection Act if an employment relationship has existed for longer than six months AND the company employs more than 10 employees, i.e. there is no so-called small company. It is important that both conditions must be met. With regard to the number of employees, special rules apply to part-time employees; trainees are not counted. The applicability of the Dismissal Protection Act does not lead to "permanency", but rather to the fact that the employer can only give ordinary notice of termination for the three reasons specified in the Dismissal Protection Act, namely for operational reasons, behavioral reasons or personal reasons.
2. Special Protection against Dismissal
Pregnant women and severely disabled persons in particular, but also trainees and members of a works council, enjoy special protection against dismissal. According to Section 9 of the German Maternity Protection Act (MuSchG), the dismissal of a pregnant woman is not permitted during pregnancy and up to four months after delivery, provided the employer is aware of the pregnancy. In order to terminate the employment of a severely disabled employee, the employer must obtain the prior consent of the Integration Office. A notice of termination issued without this prior consent is invalid. Pursuant to Section 15 of the German Dismissal Protection Act (Kündigungsschutzgesetz), extraordinary dismissal of a works council member is permissible, but not ordinary dismissal. The only exception to this is in the event of a plant closure or if the department in which the works council member is employed is closed and this department cannot be transferred to another department. The ordinary dismissal of a trainee is inadmissible after the expiry of the probationary period, which must be at least one month and must not exceed four months. With the expiry of the probationary period, the employer can therefore only - if the requirements are met - terminate the employment without notice and for cause.
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