The effective termination
Law firm for labor law in Kerpen, Cologne and Witten
Labor law | Strong partner for employees and employers
The effective termination - proper and legally secure
Law firm for labor law in Kerpen, Cologne and Witten
Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection
Qualified personnel are an elementary prerequisite for the success of any company. However, it becomes annoying when the hiring of an employee subsequently turns out to be faulty.
It is therefore not uncommon for employers to wonder how they can properly terminate affected employees. In the case of ineffectively issued Cancellations there is often a risk for the employer of being exposed to a costly legal dispute before the labor court, which could have legal consequences, such as the payment of severance pay or the continuation of the employment relationship.
Particularly due to the great relevance of protection against dismissal in Germany, it is essential for entrepreneurs to deal comprehensively with the relevant regulations on dismissal in order to be able to subsequently carry out such dismissals in a legally secure manner.
Legal requirements for terminations of employees subject to protection against dismissal
Legal requirements of a termination
If an employer wishes to give ordinary notice of termination, he is subject to a variety of restrictions. This is due, among other things, to the special protection against dismissal afforded by the Dismissal Protection Act (KSchG), which is that employers need a sufficiently specific reason even for ordinary terminations so that the termination can have legal effect against the employee.
Applicability of the German Dismissal Protection Act (Kümndigungsschutzgesetz)
Application criteria of the Dismissal Protection Act
The Dismissal Protection Act applies if
- the employee has been employed in the company for at least six months without interruption (Sec. 1 (1) KSchG) and
- more than ten employees are employed in the company (Section 23 KSchG).
Legal hurdles
Hurdles of § 1 KSchG to be overcome
If the Dismissal Protection Act now applies to the employment relationship, the Cancellation only permitted under Section 1 of the German Unfair Dismissals Act (KSchG) if it is socially justified. The social justification can arise from three reasons - namely personal reasons, behavioral reasons and operational reasons.
Termination for personal reasons
Termination - personal
In the case of termination for personal reasons, the reason for termination lies in the person of the employee. This regularly relates to the employee's abilities and characteristics, which the employee cannot influence. However, not every loss of a skill or characteristic directly justifies a dismissal. Cancellation. In addition, contractual or operational interests must be impaired. This means that the loss of the characteristic must have such a major impact that the operational process is permanently disrupted. Examples include the loss of a bus driver's license or the employee serving a prison sentence.
In addition, a prognosis must show that the employee will not regain the capacity in the foreseeable future. Even if the prognosis should then turn out to be negative, notice of termination may only be given if no milder means is available. The reason for this is the principle of ultima ratio prevailing in labor law. This states that termination must always be the last resort after other measures (such as retraining or transfer) due to the serious consequences for the person concerned.
The termination for behavioral reasons
Termination - for reasons of conduct
Dismissal on grounds of conduct can take place if the reasons for this lie in the conduct of the employee himself. The employee must have violated contractual obligations to such an extent that continued employment is unreasonable for the employer. A significant breach of contract exists, for example, in the case of persistent tardiness, unexcused absences or theft.
It should be expressly noted, however, that even in the event of such violations, a warning is initially required. Only in the event of repeated misconduct is the pronouncement of the Cancellation possible. In addition, a prognosis decision must be made here as well, in which it must be determined whether the employee will repeat his or her behavior in violation of the contract.
Termination for operational reasons
Termination - operational
Termination for operational reasons is generally characterized by the fact that the employer is unable to continue the employment relationship due to urgent operational requirements that prevent the employee from continuing to work. The reason for the termination is therefore not in the sphere of the employee, but in that of the employer. For example, some employers want to rationalize production processes, sometimes there is a restructuring in the company, in the worst case there is even the threat of insolvency.
However, other strict requirements must also be observed. There must be an urgent operational requirement to eliminate the position. In addition, the interests of the employer must be weighed against each other. Furthermore, the employer must make a social selection in accordance with Section 1 (3) KSchG. This means that only those employees who are socially least in need of protection may be dismissed.
Legal requirements for dismissals of employees in small businesses
Legal requirements
If a company regularly employs 10 or fewer employees and therefore does not enjoy the special protection of the Dismissal Protection Act employees in small companies are not completely unprotected against dismissal. Accordingly, the question arises here as well for the employer as to what protection against dismissal employees in small businesses enjoy.
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