Even if an employment contract invalidly provides for a notice period of two days and the employer subsequently issues a termination with a two-day notice period, this will not render a termination null and void.
The Hamm Higher Regional Labour Court (Landesarbeitsgericht, LAG) was called to rule on the validity of a termination in the context of an extraordinarily short notice period of two days during a probationary period (judgment dated January 30, 2015, docket number 1 Sa 1666/14). Generally, German law allows for a short notice period of two weeks during a probationary period of up to 6 months. A shorter notice period may be agreed in a collective bargaining agreement. In the case at hand, however, this exception did not apply and the notice period given was too short.
Typically, if a dismissal does not refer to the correct notice period or the correct termination date, such dismissal will be interpreted in such a way that the employment relationship shall end on the next possible termination date. However, in this case, the employee argued that the employer had intentionally tried to mislead employees by citing a considerably shorter notice period. The employee claimed that this amounted to fraudulent behaviour, and that the termination was null and void and not open to interpretation. The court did not follow this argument. Referring to the general principle that such terminations shall be interpreted in such a way that the employment relationship ends on the next possible date, it held that it was clear from the circumstances that the employer aimed to terminate the employment contract on the next possible date if the cited termination date was not possible. Looking at the circumstances of the case, it considered that the termination date given by the employer was not an integral part of the dismissal letter. The court also held that the employer’s practice of giving a wrong termination date as such was not immoral and, as the employee had failed to demonstrate any intentional or fraudulent behaviour, this would not render the dismissal invalid.