Have you received a letter of dismissal from your employer or have you been dismissed as an employee? In the following article, we explain the conditions under which the Dismissal Protection Act (KSchG) applies and whether the release mentioned in the Notice period is correct.
We explain what the employee should pay attention to in detail, why he or she should take further legal action within 21 days of receiving the notice of termination, why his or her claims expire after this preclusive period and why it is essential to hire an employment lawyer to enforce the employee's claims against the employer.
A termination in employment law is a unilateral decision by a contractual partner, the employer, to terminate the employment relationship with the employee. As a general rule, in the event of termination by the employer, the employee is always entitled to a Legal action against dismissal (KSK) can take action against it. If the dismissal protection proceedings reveal that the dismissal is invalid or socially unjustified, the employer is obliged to continue to employ the employee.
However, since in most cases neither the employer nor the employee is interested in continued employment, an agreement is often reached in the form of payment of a Severance pay from the employer to the employee. This is regarded as monetary compensation from the employer for the loss of the employee's job.
A clear distinction is made here between ordinary termination, which is the termination of the employment relationship within the statutory Deadline and the extraordinary terminationalso known as termination without notice, which terminates the employment relationship with immediate effect. In such a case, the employee is therefore well advised to consult a lawyer specializing in employment law. Lawyer in order to check the effectiveness of these for any formal errors on the part of the employer and its legal claims.
First of all, an employee's dismissal must formally contain the employee's personal details, i.e. first name, surname, address, zip code and place of residence.
In addition, the employer must expressly formulate its intention to terminate the employment relationship in writing.
Furthermore, a notice to the dismissed employee regarding registration with the Federal Employment Agency must not be omitted, as otherwise, in the worst case, there may be delays in receiving unemployment benefits.
The original signature of the employer must appear at the end of the letter of termination. If this is missing, there is a risk that it will be rejected as invalid.
Legal certaintyPreclusion periods provide clarity as to which claims are still enforceable and which can no longer be asserted. This prevents lengthy and unpredictable legal disputes.
Process economyBy promoting the prompt resolution of claims, preclusion periods help to ensure that legal disputes can be handled more efficiently and quickly.
Compensation for disadvantagesThey protect employers from surprise and late claims that would be difficult to understand or defend if they are made long after the underlying event.
It is essential for employees and employers to know and comply with the relevant preclusion periods in order to avoid any legal disadvantages. In case of uncertainty, it is advisable to seek legal advice in order to correctly understand the deadlines and their effects and to be able to act accordingly.
If the employer gives the employee ordinary notice of termination, it is clear that the employer wishes to part with the employee permanently. However, there are also a few things for the employer to consider in this case. On the one hand, the contractually agreed and legal deadlines must be observed; secondly, the employer must have a justified reason for dismissing the employee.
In any case, whether the employee receives a dismissal or wishes to terminate the employment relationship with the employer, he or she is best advised to seek advice from a lawyer specializing in employment law. Lawyer can be supported. Under certain circumstances, a Termination agreement represent another possibility for solving this problem.
The extraordinary / Dismissal without notice is the exact opposite of dismissal with notice. This form of dismissal terminates the employment relationship between the employer and the employee with immediate effect. It should be noted that the reason for extraordinary dismissal must be classified as "unreasonable" for the employer, meaning that the employer can no longer adhere to the employment contract. Reasons that are not considered unreasonable or unjustified are, for example, the employee's intention to move to another employer or short-term study place offers. However, it should be noted that unreasonableness must be discussed individually in court in almost every dismissal protection case.
In order for an employer to dismiss an employee for cause or without notice, a number of conditions must first be met. These are as follows:
A warning is an effective way for the employer to give an employee the opportunity to improve or cease breaches of conduct due to misconduct in the workplace or non-compliance with agreed contractual content. If the employer wishes to dismiss an employee due to repeated misconduct in the workplace, it is sufficient for the employer to have previously issued a warning. Contrary to popular belief, it is not the case that an employer cannot dismiss an employee unless they have been warned three times. It is also possible to dismiss an employee without a prior warning, although this is not always easy.
However, the absence of a warning makes the employee's dismissal for conduct-related reasons considerably more difficult, as the employer cannot sufficiently and convincingly prove in the dismissal protection proceedings that further violations are to be expected in the future due to multiple breaches of duty in the past.
Overall, the warning is an important instrument in employment law that both protects the employer's rights and offers the employee the opportunity to change their behavior and secure their job.
The statutory notice periods in employment law in Germany are regulated in the German Civil Code (BGB), in particular in Section 622. These notice periods apply unless otherwise stipulated in the employment contract or in an applicable collective agreement. Here are the most important points regarding the statutory notice periods:
An employee may terminate the employment relationship with four weeks' notice to the fifteenth or end of a calendar month. This notice period applies regardless of the length of service and is the statutory minimum notice period for employees.
The time limits for employers increase with the length of service of the employee. The statutory time limits are as follows:
In small companies (fewer than ten employees), different deadlines may apply under certain circumstances. It is important to find out about the specific regulations in the respective company.
The statutory time limits in employment law are an important protective mechanism for employees and employers to ensure a reasonable period of time for the termination of an employment relationship and the organization of the professional future. In the event of uncertainty or disputes about the applicable time limits, it is advisable to seek legal advice.
A leave of absence is a measure in which an employee is released from the obligation to perform their work while the employment relationship continues to exist. A leave of absence can either be mutually agreed between the employer and employee or unilaterally ordered by the employer. There are some important points that both employers and employees should bear in mind when taking a leave of absence:
There are two main types of exemption:
Revocable exemptionThe employer reserves the right to call the employee back to work at any time. This form offers the employer flexibility should he need the employee at short notice.
Irrevocable exemptionThe employee is permanently released from work until the end of the leave of absence. This form is often used in the context of a termination agreement or dismissal for operational reasons.
During the leave of absence, the employee generally remains entitled to remuneration. The employer is obliged to continue to pay the salary as normal, unless expressly agreed otherwise. In addition, entitlements to other contractual benefits, such as vacation pay or Christmas bonuses, remain in place, unless otherwise agreed.
Remaining vacation or overtime is often deducted during the leave of absence. It is important that this deduction is agreed clearly and in writing in order to avoid misunderstandings. The crediting should be documented in detail in order to prevent later conflicts.
During the leave of absence, the employee generally remains bound by contractual non-competition clauses. This means that they may not take up any activities with a competitor. Secondary activities that are not related to competition are generally permitted, but should be agreed with the employer.
In practice, the released employee is often denied access to company resources such as emails, company cell phones or IT systems. This serves to protect company data and to safeguard confidentiality interests.
The employer should make clear arrangements regarding the availability of the released employee. This can be particularly important in the case of revocable leave of absence in order to be able to contact the employee quickly if necessary.
A leave of absence should always be recorded in writing in order to create clarity about the conditions and scope of the leave of absence. This protects both parties from misunderstandings and ensures that all relevant points, such as remuneration, vacation entitlement and other conditions, are clearly regulated.
Employees who take parental leave enjoy a Special protection against dismissal. However, once the parental leave is over, the Special protection against dismissali.e. the termination of the employment relationship by the employer is no longer as difficult from this point onwards as it was during parental leave. From this point onwards, the employee is therefore exempt from the regular requirements of the Protection against dismissal affected. This means that the employee must also take action against the exclusion period within 21 days, otherwise the employee's claim against the employer will expire.
Severely disabled employees are likewise protected by a Special protection against dismissal is protected from "simple" termination of the employment relationship, as the employer must first obtain approval from the pension office or integration office in order to terminate the employment relationship. The dismissal of a severely disabled employee is only possible after this approval and the associated prior hearing of the employee. Otherwise, the dismissal of a severely disabled employee is not legally valid! It should also be mentioned that people with a degree of disability of 30 also fall under the special protection against dismissal if they have been given the same status as severely disabled employees.
Unfortunately, dismissing an employee within the probationary period does not mean anything good for the employee, as in this case the KSchG only applies after the end of the probationary period. Only after this period has expired is the employer obliged to justify the dismissal of an employee or give reasons for it. Therefore, in the event of dismissal during the probationary period, there is unfortunately not much hope of success for the employee.
A lawyer plays a crucial role both before and after a dismissal. Before dismissal, they can inform you of your rights and obligations and help you to avoid potential mistakes. If you are dismissed, support with an action for unfair dismissal is crucial. The KSK is a legal means of having the legality of this reviewed. An experienced lawyer can significantly increase the chances of success of such an action.
A lawyer can help you to avoid mistakes in the dismissal procedure that could lead to an invalid dismissal. They can also significantly increase your chances of receiving a severance payment. A severance payment is a one-off payment made by the employer to the employee, which is often agreed as part of a mutually agreed solution. Negotiating a severance payment is often complex and requires legal expertise, which a lawyer can provide.
An action for unfair dismissal must be filed within three weeks of receiving notice of dismissal. The lawyer plays a central role here by accompanying the entire process from filing the complaint to representing you in court. The lawyer ensures that all necessary documents and evidence are submitted in good time and represents your interests vis-à-vis the employer.
Formal errors, such as an incorrect notice of termination, and non-compliance with deadlines are common mistakes that can lead to a termination being invalid. A lawyer can uncover such errors and help you defend your rights. The reasons for dismissal must also be valid and comprehensible. A lawyer can check the reasons given and challenge them if necessary.
After receiving notice of termination, it is important to keep calm and plan the next steps carefully. A lawyer can help you compile the most important documents and information. This includes the employment contract, the notice of termination, payslips and any warnings. These documents are crucial for assessing the legality of this and preparing a KSK.
The costs of employment law proceedings can vary depending on the type and scope of the proceedings. In principle, these costs are made up of various components, including court costs, lawyers' fees and possibly other expenses. Here is an overview of the main cost factors:
Proceedings in the first instanceIn the first instance before the labor court, there are generally no court costs for the plaintiff employee if he wins the legal dispute. If both parties lose, each bears their own costs. In the event of a settlement, the costs are often offset against each other, which means that each party bears its own costs.
Court feesThe amount of the court fees depends on the value in dispute of the proceedings. The amount in dispute is often based on the gross monthly income of the plaintiff, particularly in the case of actions for unfair dismissal.
Lawyers' Fees Act (RVG)Legal fees are generally calculated in accordance with the RVG, which scales fees according to the amount in dispute and the importance of the matter.
Proceedings in the first instanceIn the first instance before the labor court, each party bears its own legal fees, regardless of the outcome of the proceedings. This means that the winning party will not be reimbursed for their legal fees by their opponent.
Higher court proceedingsIn appeal or revision proceedings, the unsuccessful parties may be ordered to pay the other party's legal fees and court costs.
ExpensesThis may include costs for witnesses, experts or obtaining expert opinions.
Travel expensesIf one of the parties or their lawyers is required to travel to the court venue, travel costs may be incurred.
Legal expenses insurance can cover the costs of employment law proceedings. However, it is important to check the terms and conditions of the insurance policy, as not all employment law disputes are covered and there is often a waiting period before benefits can be claimed.
Employees with a low income and insufficient assets can apply for legal aid. If this is granted, the state will pay the court costs and, depending on approval, also the lawyer's fees. Approval depends on the financial circumstances and the chances of success of the proceedings.
Employment law disputes are often ended by a settlement. In such a case, the parties often agree to offset the costs against each other, which means that each party bears its own costs.
The costs of employment law proceedings can vary considerably and depend on various factors, including the complexity of the case, the amount in dispute and the instance. Employees should consider the potential costs and the possibility of costs being covered by legal expenses insurance or legal aid before pursuing proceedings. A thorough cost-benefit analysis and legal advice are recommended in order to make informed decisions.
Terminating an employment relationship is a complex and often emotionally stressful process. The support of a lawyer can make all the difference here. A lawyer will ensure that your rights are protected and help you to find the best possible solution, be it through a successful dismissal protection claim or an appropriate severance payment. Rely on the expertise of an experienced lawyer to help you make the right decisions in this difficult situation.
Main office - Kerpen
Mr. Patrick Baumfalk, attorney at law
Main street 147
50169 Kerpen
Germany
Branch office - Witten
Mr. Patrick Baumfalk, attorney at law
Berlin street 4
58452 Witten
Germany
Our cooperation partner in the USA, FL, Merritt Island, Spacecoast and Miami, USA:
Mr. Alexander Thorlton, Esq. - German American Real Estate & Immigration Law Center, LLC
Web design & SEO from Baumfalk Services
English 
Deutsch 
Français 
Español 
Türkçe 
Italiano 
Polski 
Nederlands 
Svenska 
Română 
Български 
Русский