Termination in labor law

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Termination of the employment contract / employment agreement

Law firm for employment law in Kerpen and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection

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) and whether the notice of termination states that the Notice period is correct. We explain what the employee should pay attention to in detail, why they should take further legal action within 21 days of receiving the notice of termination, why their claims expire after this preclusive period and why hiring an employment lawyer is essential to enforce the employee's claims against the employer.

What is a termination?

Definition of termination under German labor law

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 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, as in most cases neither the employer nor the employee are interested in continued employment, an agreement is often reached in the form of the 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 between ordinary termination, which is the termination of the employment relationship within the statutory period of notice, and dismissal. Notice period 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 to check the validity of the termination for any formal errors on the part of the employer and its legal claims.

What must a notice of termination contain?

Formal requirements of a notice of termination

Cancellation

First of all, an employee's notice of termination 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 notice of termination. If this is missing, there is a risk that the termination will be rejected as invalid.

What is ordinary termination?

Definition of ordinary termination in labor law

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 statutory notice periods must be observed; secondly, the employer must have a legitimate reason for dismissing the employee.

In any case, whether the employee receives a notice of termination 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.

What are the forms of termination?

Different types of termination

  • Termination for operational reasons: The prerequisites for dismissal for operational reasons or dismissal for operational reasons are so-called "urgent operational requirements". These can be, for example, the unforeseen loss of a major customer, a fundamental lack of orders, the closure of a plant or a decline in sales.

  • Termination for personal reasons: A dismissal for personal reasons, often also referred to as dismissal due to illness, is usually issued by the employer to the employee if the reasons lie in the person of the employee. This means that the employee is no longer able to perform their contractually agreed work due to illness, chronic illness or, for example, driving disqualification. In this case, continued employment at another job within the company must also be ruled out.

  • The behavioral dismissal: A conduct-related dismissal is issued by the employer to the employee if the employee has deliberately, i.e. knowingly, breached one of their obligations under the employment contract. This may be the case, for example, if the employee has committed theft in the workplace or has refused to work towards the employer. However, in order to issue a dismissal for conduct-related reasons, there must be at least one warning in the employee's personnel file.

What is extraordinary termination / termination without notice?

Definition of extraordinary termination / termination without notice

Cancellation

The extraordinary termination / Termination without notice is the exact opposite of ordinary termination. This form of termination ends the employment relationship between the employer and the employee with immediate effect. It should be noted that the reason for extraordinary termination 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.

On what grounds can the employer issue an extraordinary termination / termination without notice?

Reasons for extraordinary termination / termination without notice

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:

  • Termination for cause: For example, sexual harassment of a female colleague or theft in the workplace.

  • Warning and confirmation of dismissal for conduct-related reasons: Since in most cases the extraordinary or termination without notice is a termination for conduct-related reasons, the employer should at least have warned the employee in advance about the reason for termination as a last resort. This confirms the fact that the employer has no milder means at its disposal than the extraordinary or termination without notice, as he has already given the employee the chance to improve in the form of a warning or an informative, clarifying discussion.

  • The 2-week period: The employer is obliged to dismiss the employee within 2 weeks of becoming aware of the "violation". If notice is given at a later date, it can only be given in the form of ordinary notice.

What exactly is a warning?

Definition warning

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.

Statutory notice periods in employment law

What are the deadlines in labor law?

According to the legal standards of the German labor law, employees always have the possibility to terminate their employment with a notice period of 4 weeks to the 15th or end of the calendar month. In most employment contracts, however, this is defined much longer, which is also legal, but not shorter. However, the employer is obliged to adhere to much longer legal notice periods. Notice periods These may be extended by a considerable amount if the employee remains with the company for a longer period.

What does the exemption after receiving a notice of termination mean?

Definition of exemption after termination

Cancellation
The term "leave of absence" in the event of termination of the employment relationship by the employer means that the employee no longer has to attend work until the termination date of the employment relationship. However, the employment relationship remains in place until the termination date described/contained in the notice of termination, i.e. the employee continues to receive their salary for this period. However, a distinction is also made here between two different forms of leave of absence. Revocable leave of absence and irrevocable leave of absence after the employee has given notice. In the case of revocable leave of absence, the employee must always bear in mind that the employer can order the employee to return to work at any time, which is of course excluded in the case of irrevocable leave of absence. However, any vacation not taken by the employee can be added to the aforementioned period. In practice, this is often forgotten.

Special scenarios in relation to a termination

Termination after parental leave

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 from this point on no longer as difficult as during the parental leave. From this point on, the employee is thus 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.

Dismissal as severely disabled person

Severely disabled employees are likewise protected by a Special protection against dismissal The severely disabled employee is protected from a "simple" termination of employment, as the employer must first obtain the approval of the pension office or integration office before terminating the employment. Only after this approval and the associated upstream hearing of the employee is the termination of a severely disabled employee possible. Otherwise a dismissal of a severely disabled employee is not legally effective! In addition, it should be mentioned that people with a degree of disability of 30 also fall under the special protection against dismissal, should they be treated as severely disabled persons.

Termination during the probationary period

Unfortunately, termination of an employee within the probationary period does not mean anything good for the employee, since in this case the Dismissal Protection Act (KSchG) only takes effect after the end of the probationary period. Only after the end of the probationary period is it obligatory for the employer to justify the dismissal of an employee or to give reasons for it. Thus, in the event of termination during the probationary period, there is unfortunately no great hope of success for the employee.

Have you been terminated or received a severance agreement from your employer?

Then contact us

+49 (0) 2273 - 40 68 504

info@kanzlei-baumfalk.de

Law firm for employment law in Kerpen and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection

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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

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