Dismissal & protection against dismissal

Have you received a cancellation?

Then you need to act quickly now. The deadline for a Dismissal protection action takes only three weeks from receipt of the notice of termination (Section 4 KSchG). If this deadline is missed, the dismissal is deemed effective - even if it was unlawful. Lawyer Martin Reichelt in Dresden will examine your dismissal immediately and advise you on your options.

Dismissal and protection against dismissal are closely linked - many dismissals are flawed. Whether formal defects, lack of consultation with the works council, insufficient social selection or lack of grounds for dismissal - the requirements under labour law for an effective dismissal are high. Make use of your rights and have your dismissal reviewed by an experienced employment lawyer.

Cancellation received - what to do now

If you receive a cancellation notice, you should follow these steps:

• Keep calm: Do not sign anything and do not accept the cancellation prematurely.
• Secure cancellation: Make a note of the date on which you received the cancellation. This date is decisive for the deadline for taking legal action.
• Contact a lawyer immediately: The three-week period for filing an action for unfair dismissal begins when the notice of dismissal is received. Every day counts.
• inform the employment agency: Register as a jobseeker with the Employment Agency within three days of becoming aware of the cancellation (§ 38 SGB III).
• Save documents: Collect your employment contract, payslips, warnings and other relevant documents.

Ordinary cancellation

The ordinary cancellation is the regular form of terminating an employment relationship. It must be in writing (Section 623 BGB) and comply with the statutory, collectively agreed or contractual notice periods. The statutory notice periods for the employer are regulated in Section 622 of the German Civil Code (BGB) and are extended with increasing length of service:

• Up to 2 years of service: 4 weeks to the 15th or end of the month
• From 2 years: 1 month to the end of the month
• From 5 years: 2 months to the end of the month
• From 8 years: 3 months to the end of the month
• From 10 years: 4 months to the end of the month
• From 12 years: 5 months to the end of the month
• From 15 years: 6 months to the end of the month
• From the age of 20: 7 months to the end of the month

If the German Protection against Dismissal Act (Kündigungsschutzgesetz) is applicable, the employer must give notice of ordinary dismissal. socially justified reason for dismissal required.

Extraordinary termination (without notice)

One extraordinary cancellation in accordance with Section 626 of the German Civil Code (BGB) terminates the employment relationship immediately, without observing a period of notice. It is only permissible if a important reason that makes it unreasonable for the terminating party to continue the employment relationship until the end of the ordinary notice period. Typical reasons are

• Theft or embezzlement at the workplace
• Serious insult or threat to colleagues or superiors
• Persistent refusal to work
• Breach of competition law during the current employment relationship
• Working time fraud

The extraordinary cancellation must be submitted within two weeks after knowledge of the reason for termination (Section 626 (2) BGB). As a rule, a warning is required beforehand - unless the breach of trust is so serious that a warning is unnecessary.

Dismissal and protection against dismissal under the KSchG

The Dismissal Protection Act is the central protection law for employees. It applies if two conditions are met:

• The employee is employed for longer than six months employed in the company (Section 1 (1) KSchG).
• The company regularly employs more than ten employees (Section 23 (1) KSchG).

If the KSchG is applicable, a termination is only effective if it socially justified is. The law recognises three grounds for termination:

Dismissal for operational reasons

A termination for operational reasons exists if urgent operational requirements cause the loss of the job. Typical reasons are a decline in orders, plant closure, reorganisation or outsourcing. The employer must prove that the job has actually been permanently eliminated and that there is no possibility of continued employment in another vacant position.

In the event of a termination for operational reasons, the employer must § Section 1 (3) KSchG carry out a proper social selection. Length of service, age, maintenance obligations and any severe disability must be taken into account. Errors in the social selection make the dismissal contestable. The employer must also prove that there is no possibility of continued employment in another vacant position in the company.

In the event of termination for operational reasons, a Social selection in accordance with Section 1 (3) KSchG. Four criteria must be taken into account:

• Length of service
• Age
• Maintenance obligations
• Severe disability

Errors in the social selection make the dismissal invalid. Attorney Reichelt will carefully check the social selection in your case.

Termination for personal reasons

Termination for personal reasons may be considered if the employee is dismissed due to his or her personal characteristics or abilities can no longer perform the work owed. The most common case is Termination due to illness. This is subject to strict conditions:

• Negative health prognosis
• Significant impairment of operational interests
• No milder means (e.g. transfer, company integration management in accordance with Section 167 (2) SGB IX)
• Weighing of interests in favour of the employer

Termination for behavioural reasons

Termination for behavioural reasons begins Culpable misconduct of the employee that violates a contractual obligation. Typical reasons are unexcused absence, repeated lateness, refusal to work or breaches of company regulations. As a rule, the employer must first warned have.

Typical reasons for dismissal for conduct-related reasons are repeated unexcused absences, working time fraud, theft at the workplace or refusal to follow reasonable work instructions. In principle, the employer must issue a relevant warning before a dismissal for misconduct. Only in the case of particularly serious breaches of duty can a dismissal be justified without a prior warning.

Special protection against dismissal

Certain groups of people enjoy special protection against dismissal that goes beyond the general Dismissal Protection Act:

Pregnant women and mothers

According to § 17 MuSchG, the dismissal of a pregnant employee and up to four months after giving birth is generally prohibited. inadmissible. Cancellation is only possible in absolutely exceptional cases with the approval of the competent authority.

Parental leave

During parental leave and from the point at which parental leave is requested (at the earliest eight weeks before the start), there is special protection against dismissal in accordance with § 18 BEEG.

Severely disabled people

The dismissal of a severely disabled or equivalent employee requires the prior consent of the employer. Approval of the integration office (§ 168 SGB IX). If this consent is missing, the cancellation is invalid.

Works Council members

Works council members enjoy special protection against dismissal in accordance with Section 15 KSchG. Ordinary dismissal is generally prohibited during the term of office and one year thereafter. excluded. Only extraordinary dismissal with the consent of the works council (or replacement by the labour court) is possible.

Data protection officer

Company data protection officers also enjoy special protection against dismissal in accordance with Section 38 (2) in conjunction with Section 6 (4) BDSG. Ordinary dismissal is not permitted during the appointment and one year after dismissal.

The dismissal protection action - procedure and opportunities

The Action for unfair dismissal is the main legal remedy against an invalid dismissal. It must be submitted to the competent labour court within three weeks of receipt of the dismissal (Section 4 KSchG).

Course of the procedure

• Filing a lawsuit: Attorney Reichelt files an action for protection against dismissal with the Dresden Labour Court.
• Conciliation hearing: A conciliation hearing is held within a few weeks (Section 54 ArbGG). An attempt is made to find an amicable solution - often through a settlement with a severance payment.
• Chamber appointment: If no agreement is reached at the conciliation hearing, the court hearing follows, at which the court decides on the validity of the cancellation.
• Judgement or comparison: Most dismissal protection proceedings end with a settlement. Only a small proportion are decided by judgement.

Prospects of success

The chances of success of an action for unfair dismissal depend heavily on the individual case. Statistically, however over 60 per cent of all dismissal protection proceedings result in a settlement - often combined with a severance payment. After examining your case, Mr Reichelt will give you an honest assessment of the opportunities and risks.

Severance pay in dismissal protection proceedings

A severance payment is not an automatic result of an action for unfair dismissal. However, it is often agreed as part of a court settlement agreed. The amount of the severance payment depends on various factors:

• Length of service
• Monthly salary (gross)
• Prospects of success of the action
• Age of the employee and opportunities on the labour market
• Economic situation of the employer

As a rule of thumb: 0.5 gross monthly salary per year of employment. With a good negotiating position or special protection against dismissal, however, the severance payment can be significantly higher. Attorney Reichelt will negotiate the best possible severance payment for you.

Frequently asked questions about dismissal and protection against dismissal

Can I take legal action against any cancellation?

In principle, yes. An action for unfair dismissal is possible for any type of dismissal - ordinary, extraordinary and dismissal with notice of change. However, the chances of success vary. A dismissal may also be invalid outside the scope of the Dismissal Protection Act (e.g. in small companies or during the probationary period), for example in the event of violations of the prohibition of reprimands, discrimination or immorality.

What happens if I miss the three-week deadline?

If the three-week period is missed, the dismissal is deemed to be effective from the outset in accordance with Section 7 KSchG. Only in absolutely exceptional cases can an application be made for retrospective authorisation to file an action in accordance with Section 5 KSchG, for example if the employee was prevented from filing an action in good time despite exercising all reasonable care.

Does the employer have to state the reason for the dismissal?

In the case of ordinary termination, the reason for termination does not have to be stated in the letter of termination. However, the employee can request information about the reasons for termination. In the case of extraordinary termination, the terminating party must inform the terminated party of the reason for termination in writing immediately upon request (Section 626 (2) sentence 3 BGB).

Can I be dismissed during an illness?

Yes, it is generally possible to give notice during a period of sick leave. There is no general ban on dismissal during illness. However, the dismissal must comply with the general dismissal protection regulations. Dismissal due to illness is only permissible under strict conditions (negative health prognosis, significant impairment, balancing of interests).

What is a notice of termination?

In the case of a termination with notice of change, the employer terminates the existing employment relationship and at the same time offers to continue the employment relationship under changed conditions (e.g. lower salary, different place of work). The employee can accept the offer, reject it or - the most common recommendation - accept it with reservations and have the change reviewed in court (Section 2 KSchG).

This article is intended to provide general information and does not replace individual legal advice. For an assessment of your specific case, please arrange a consultation with lawyer Martin Reichelt.