Termination in labor law
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Termination of the employment contract / employment agreement
Law firm for labor law in Kerpen, Cologne and Witten
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Have you received a letter of dismissal from your employer or has your employer issued such a letter to you as an employee? In the following article, we will explain the conditions under which the Dismissal Protection Act (KSchG) and whether the notice of termination states that the Notice period is correct. What the employee should pay attention to in detail, why the employee should take further legal action within 21 days of receiving the notice of termination, why the employee's claims are extinguished after the expiration of this preclusion period, and why the appointment of an employment law attorney is indispensable in order to enforce the employee's claims against the employer.
What is a termination?
Definition of termination under German labor law
Termination of employment is a unilateral decision of a contractual partner, the employer, to terminate the employment relationship with the employee. In principle, in the event of a notice of termination given by the employer to the employee, the employee is always entitled to a Legal action against dismissal can take action against it. If, in the course of the proceedings for protection against dismissal, it is found that the dismissal may be invalid or socially unjustified, the employer is obliged to continue to employ the employee.
However, since in most cases neither party, employer as well as employee, is interested in a solution in the form of the Continued employment are interested, in most cases an agreement is reached in the form of payment of a Severance pay concluded by the employer to the employee. This is considered monetary compensation from the employer to the employee for the loss of the job.
However, a clear distinction is made between the terms "ordinary termination", which refers to the termination of an employee's employment within the statutory period of notice. Notice period provides for, and the extraordinary terminationalso known as termination without notice, which dissolves / terminates the employment relationship with immediate effect. The employee is therefore well advised in such a case, a specialized in labor law Lawyer to the side in order to check the validity of his notice received for any formal errors on the part of the employer and his legal claim.
What must a notice of termination contain?
Formal requirements of a notice of termination
First of all, an employee's notice of termination must contain the employee's personal data in terms of form, i.e. first name, last name, address, postal code and place of residence. In addition, it requires an explicit, written will to terminate the employment relationship by the employer.
Should it be extraordinary terminationIf you wish to terminate the contract without notice, it is absolutely necessary that the specific reason for termination is described / included in the notice.
Furthermore, an instruction to the terminated employee regarding reporting to the Federal Employment Agency must not be missing, as otherwise, in the worst case, the employee may miss out on receiving unemployment benefits.
There must be an original signature of the employer at the end of the notice; if this is not present, the employer runs the risk that this can also be interpreted as invalid.
What is ordinary termination?
Definition of ordinary termination in labor law
If the employer issues an ordinary notice of termination to the employee, it can no longer be doubted that the employer wishes to part / disengage from the employee for good. However, there are also a number of things for the employer to consider in this case. On the one hand, contractually agreed or statutory periods of notice On the other hand, the employer must also have a justified reason to give notice of termination to the employee.
In any case, upon receipt of a notice of termination or the employee's own desire to terminate the employment relationship between him and the employer, the employee is best placed to seek advice in this regard from a specialist in labor law. Lawyer advice. 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 a termination for operational reasons or a termination 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 due to personal reasons, often also a dismissal due to illness, is usually given by the employer to the employee if the reasons lie in the person, i.e. the employee can no longer provide the performance agreed with the employer due to illness, chronic illness or, for example, withdrawal of the driver's license. In addition, in this case, continued employment at another workplace within the company must not be possible.
- The behavioral dismissal:
A termination for behavioral reasons is pronounced by the employer against the employee if the employee has deliberately, i.e. knowingly, violated one of his duties under the employment contract, i.e. for example has committed theft at the workplace or has refused to work towards the employer. However, in order to issue a termination for behavioral reasons to the employee, there must be at least one warning in the personnel file.
What is extraordinary termination / termination without notice?
Definition of extraordinary termination / termination without notice
The extraordinary termination / Termination without notice is exactly the opposite of the so-called ordinary termination. This form of termination by the employer terminates the employment relationship with the employee with immediate effect. However, it should be noted that the reason to terminate an employee extraordinarily must be a circumstance to be classified as "unreasonable" for the employer, so that the employer "can" no longer adhere to the employment contract. Reasons that are not considered unreasonable or unjustified are, for example, the intended change of the employee to another employer or short-term study place offers. In principle, however, it should also be mentioned 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 terminate an employee without notice, a number of conditions must first be met. These are as follows:
- Termination for cause:
For example, sexual harassment of a co-worker or theft at work
- Warning, affirmation of termination for conduct:
Since it is in most cases of the extraordinary / If the termination without notice is a termination due to conduct/indicated conduct, the employer should at least have warned the employee in advance with regard to the reason for termination in the sense of the "ultima ratio". This reinforces the fact that the employer has no milder means at its disposal than the extraordinary / termination without notice, as he had already given the employee the chance to improve in the form of a warning or an indicative, clarifying conversation.
- The 2 weeks deadline:
The employer is obliged to terminate the employee within 2 weeks after becoming aware of the "violation" of the employee. If the notice of termination is given at a later point in time, it can only be given in the form of ordinary notice of termination.
What exactly is a warning?
The warning is a proven means for the employer to give an employer due to error behavior at the workplace or non-compliance with agreed contractual content, effectively, the opportunity to improve or cease and desist with regard to behavior violations. If the employer wishes to terminate an employee due to repeated or recurring misconduct in the workplace, it is sufficient if the employer has issued a warning to the employee. It does not apply, as is popularly known, that an employer cannot terminate an employee as long as the employee has not been warned three times. It is also possible to terminate an employee without having previously issued a warning, although this is not always straightforward.
However, a failure to issue a warning makes it significantly more difficult to terminate an employee's employment for conduct-related reasons, since the employer cannot sufficiently and convincingly prove in the proceedings for protection against dismissal that further breaches of duty 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
The term "leave of absence" in the event of termination of the employment relationship by the employer means for the employee that he/she no longer has to appear for work until the termination date of his/her employment relationship. However, the employment relationship shall continue until the termination date described / contained in the notice of termination, i.e. for the employee that he/she shall also continuously receive his/her salary for this period.
However, a distinction is also made here between two different forms of release. The revocable exemption and the irrevocable exemption after termination of the employee. 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 may 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.