Termination

Bad handwriting – dismissal invalid?

The problem Bad handwriting – a problem that is of little importance in times of computers, smartphones, etc. However letters of dismissal may not be sent via mail but have to be signed by hand; therefore even in our modern times, bad handwriting can affect the invalidity of a such a notice and thus lead to a defeat in court. The plaintiff, an employee of the Berlin-Schönefeld airport , filed a lawsuit against her dismissal. This dismissal was based on her numerous absences due to illness. First, she argued, that her absence was not so severe as to justify the …

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Mass dismissal: Employer has to notify the Employment Agency prior to the delivery of the termination notice to the individual employees

On 13 June 2019, the Federal Labour Court (docket number 6 AZR 459/18) ruled that a mass dismissal notification can be effectively filed even if the employer has already taken the decision to terminate the employment relationships at the time of its receipt by the Employment Agency. In the event of mass dismissals and subject to the fulfillment of all other statutory requirements, terminations, however, would only be effective if the employer notified the Employment Agency prior to the delivery of the termination letters to the individual employees. The parties were in dispute as to whether the defendant was able to …

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Termination agreements: Employees have no right of withdrawal

On February 7, 2019 the Federal Labour Court (docket number 6 AZR 75/18) ruled that employees cannot withdraw a termination agreement even if it was concluded in the private apartment of the employee. In the case at hand, however, the termination agreement might be void if the fundamentals of fair negotiation (Gebot des fairen Verhandelns) have been ignored. The parties agreed to a termination agreement in the apartment of the plaintiff. The termination agreement comprised immediate termination of the employment without any severance. The reasons and the process leading to the agreement are contested. The plaintiff argued that she was …

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Mass redundancies: A compensation of disadvantage could be offset by a social plan severance

On 12 February 2019 the Federal Labour Court (docket number 1 AZR 279/17) ruled that a social plan severance and a compensation of disadvantage (Nachteilsausgleich) need to be offset. In March 2014, the employer took the decision to shut down its operation which the plaintiff was employed in. The employer informed the works council about the mass redundancy and tried – at least for a short period – to reach a balance of interest (Interessenausgleich). Before both proceedings were completed properly the employer terminated all the employees for operational reasons. Subsequently, the employer and works council concluded a social plan, …

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Notices of termination may not be signed before mass dismissal notification has been submitted

With its judgment dated 21 August 2018, the Higher Regional Labour Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg) decided that the dismissal of an employee as part of a mass redundancy is invalid if the notice of termination is signed prior to receipt of the mass dismissal notification to the authority. The time of the receipt of notice of termination by the employee is irrelevant (docket number: 12 Sa 17/18). Under German law, the Employment Office must be notified prior to dismissals as part of a mass redundancy. This reflects obligations under the Directive 98/59/EC. The termination at issue was issued as …

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Termination with Change of Terms of Employment on Grounds of Conduct

On 14 November 2017 the State Labour Court of Mecklenburg-Vorpommern (docket number 5 Sa 87/17) decided that a termination with change of terms of employment on grounds of conduct is socialyl justified if an employee has breached contractual obligations again in spite of a warning. In principle, this also applies in cases in which the change of terms of employment entails a transfer to a lower paid activity. The plaintiff is employed as a bus driver by the defendant. In his additional function of a dispatcher he was also responsible for planning tours, as well as for the road safety …

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Dismissal on suspicion (“Verdachtskündigung”) – reasonable time period to give a statement regarding the accusations

On 21 March 2018, the state labor court of Schleswig-Holstein ruled that a valid “dismissal on suspicion” (“Verdachtskündigung”) requires that the affected employee had been granted a reasonable time period to give a statement regarding the accusations (docket number 3 Sa 398/17). A “dismissal on suspicion” is void if the employer issues the notice of termination after having granted a time period of only two working days to the employee to issue his statement regarding the accusations. A so-called “dismissal on suspicion” can justify a dismissal if alleged misconduct of the employee has not been proven but there are indications …

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Practical problems with the termination of temporary agency worker

The German law on temporary employment is very strict. In general, temporary agency workers are employees. This means that the temporary worker is protected as well as any other employee. Particularly relevant here is the protection against dismissal. In principle, under German Law an employee can be terminated for operational reasons if the employer cannot employ him anymore due to the loss of his position. In temporary employment, however, the temporary worker is not employed by the temporary work agency as employer itself. Instead, he works for another company. However, if the temporary work agency does not find a company …

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Extraordinary termination due to feigning incapacity for work

On 7 July 2017 the State Labour Court in Cologne (docket number 4 Sa 936/16) decided that a strong suspicion that an incapacity for work is feigned, is sufficient to justify a termination for good cause, in the course of a dismissal on grounds of suspicion, even though a certificate of incapacity exists. In general a certificate of incapacity for work has such strong evidential value that a trial judge is usually entitled to consider the proof of incapacity for work as demonstrated. However, the evidential value of a certificate of incapacity can be displaced if the employer demonstrates reasonable …

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Threat to commit suicide or to run amok can justify a dismissal for cause with immediate effect

On 29 June 2017 the Federal Labour Court decided that a serious threat of committing suicide or to run amok can be a compelling reason to terminate an employment relationship for cause with immediate effect if the employee thereby seeks to exert pressure on the employer (docket number 2 AZR 47/16). The employee and later plaintiff had been employed by the German federal state of Hesse since 1992 and worked – for most of the time – in road maintenance. He enjoyed special dismissal protection based on collective bargaining agreements. The employee had been suffering from psychological difficulties and, as …

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The sweet sorrow of parting – 3 year long termination notice period puts employee at disadvantage

German employment law allows the parties to an employment contract to agree a specific notice period in derogation from the statutory standard period as set out in § 622 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), as long as the notice period for an employee does not exceed the notice period for the employer. However, the German Federal Labour Court (Bundesarbeitsgericht, BAG) recently ruled (26 October 2017; docket number: 6 AZR 158/16) that significantly extending the termination notice period for an employee by general terms and conditions might not be in good faith and therefore lead to an unreasonable disadvantage, even if the notice …

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Restructuring of a business in Germany – an overview

Where restructuring measures comprising collective redundancies become necessary, the employer must fulfil a number of legal requirements to successfully implement such measures. While it is sometimes tempting to implement the necessary restructuring in a way that ignores the various legal requirements (e.g. co-determination of the works council etc.), there are only exceptional situations in which such a way does not lead to a total failure of the original plan. For the employer, unlike for the employees, there is usually no alternative than to adhere closely to the rules of the law, which requires financial preparation, a solid planning, open communication …

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Termination only on the basis of suspicion – Basics and difficulties

We recently reported on third parties’ pressure to terminate an employee in our blog. This time, too, we would like to take a current judgment (Federal Labour Court of Germany (“Bundesarbeitsgericht”) from 2.3.2017, docket number 2 AZR 698/15) as an opportunity to report on a further special possible termination: a termination based only on suspicion of unacceptable behavior. German law also permits dismissal on grounds of suspected unlawful or unacceptable behavior (if it is a particularly serious suspicion and can be substantiated by facts). This means that the termination is permitted because of a presumed behavior, even if this behavior …

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Ineffectiveness of a suspicion termination after the disappearance of 115.000 Euro

In order to protect employees from termination where there is suspicion that they have committed a crime, such a termination is subject to very strict conditions. In particular, the probability that the suspected employee is in fact guilty of the assumed crime has to be so high that the suspicion is considered urgent. The urgency of a suspicion can only be assumed if there are no reasons for also suspecting other employees of the committed crime. In the present case (judgment of the Regional Labour Court of Hamm dated 14 August 2017, docket number 17 Sa 1540/16) an employee of …

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Employees exempted from their duties are allowed to take part in a corporate event

On 22 June 2017 (docket number 8 CA 5233/16) the labour court in Cologne found that an employee is allowed to take part in company outings and events although he is on garden leave. The employee and subsequently plaintiff had been working for the employer, an association that operates retirement homes, for almost three decades. Triggered by a change in the employer’s executive board, the employee agreed to be on garden leave for the last two years prior to his pension start date. Although on garden leave, he was still initially invited to the employer’s events, e.g. the Christmas party. …

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