Termination of the employment relationship (Germany)

from Wikipedia, the free encyclopedia

The Employment Protection Act (KSchG) primarily serves to protect jobs ( grandfathering ). This principle is legally breached by the possibility of termination of an employment relationship through a judgment of the labor court (ArbG) in accordance with §§ 9, 10, 14 KSchG (in fact, in many cases by settlement settlements). A dissolution judgment is only possible under certain conditions and in fact only comes into play in the rather rare cases that the parties do not agree to terminate the employment relationship. The legal way can serve the employee as a tactical means to part with the employer in return for a severance payment. It can serve the employer to separate himself from the employee who does not want to leave by mutual agreement, although an outright termination is ineffective.

overview

If an ordinary termination according to the KSchG is socially unlawful - if the termination is therefore ineffective and the employment relationship actually continues - can

  • an employee pursuant to Section 9 (1) sentence 1 KSchG can apply to the labor court (or regional labor court) to terminate the employment relationship in return for a severance payment by the court if the employee is no longer “reasonable” to continue the employment relationship.
  • Likewise, the employer can apply for the same in accordance with Section 9 (1) sentence 2 KSchG if “cooperation that serves operational purposes” is no longer to be expected; in the case of executive employees within the meaning of Section 14 (2) KSchG, even without justification.

In the event of extraordinary termination , only the employee can apply for termination (Section 13 (1) sentence 3 KSchG).

scope of application

  • An application for termination can only be submitted as part of a dismissal protection process.
  • An application for dissolution is ruled out if the employee has not brought an action against ordinary or extraordinary termination within the three-week period of §§ 4, 7 KSchG or §§ 4, 7, 13 KSchG or subsequently admitted this according to § 5 KSchG or according to § 6 KSchG can still be attacked subsequently - because otherwise the termination is considered effective.
  • An application for dissolution assumes the applicability of the KSchG according to §§ 1, 23 KSchG.
  • It must be about the termination of an employment relationship. §§ 9, 13 KSchG do not apply to vocational training relationships.
  • It has to be a termination notice. A notice of change that has been accepted with reservations does not fall under Section 9 KSchG, a notice of change that has not been accepted with reservations falls under Section 9 KSchG.
  • Section 9 (1) sentence 2 KSchG (i.e. the termination at the request of the employer) is directly or analogously applicable neither to an extraordinary termination without notice by the employer nor to an extraordinary termination “with a social expiry period”.

Application by the employee, Section 9 Paragraph 1 Clause 1 KSchG

admissibility

Dissolution request

A dissolution judgment can only be issued in response to an application for dissolution. A precautionary application according to § 12 KSchG is harmless. Also that the employee may already have a new job. If the employer has given both extraordinary and ordinary notice of termination, the employee can choose to apply for one or the other notice of termination. The application can be submitted to the regional labor court up to the time of the last oral hearing (Section 9 (1) sentence 3 ArbGG) and can also be withdrawn again (without the employer having to consent).

Example: an application is made to terminate the employment relationship in accordance with §§ 9, 10 KSchG from ... and to sentence the defendant to pay the plaintiff a severance payment in the amount of x EURO plus interest of 5 percentage points above the base rate from the date the severance payment judgment becomes final.
Need for legal protection

An application for dissolution can also be maintained or made for the first time if the employer withdraws a notice of termination. The withdrawal of the termination does not remove the need for legal protection for the application for dissolution.

Justification

Social unlawfulness of termination

The termination must be ineffective. In the case of ordinary termination, it must be socially unlawful according to § 1 KSchG. The social unlawfulness must be positively determined. It is not enough that the termination is ineffective for other reasons. In the event of extraordinary termination (Section 9 (1) sentence 1 KSchG in conjunction with Section 13 (1) sentence 3 KSchG), the termination must be ineffective according to Section 626 of the German Civil Code or Section 138 of the German Civil Code. The termination does not only have to be socially unfriendly (or only ineffective according to §§ 626, 138 BGB). In contrast to the employer's application for dissolution, it is harmless that a termination is ineffective for other reasons.

Unreasonableness

The continuation of the employment relationship must be "unreasonable" for the employee.

Unreasonableness within the meaning of § 9 Paragraph 1 Clause 1 KSchG is more than a social unlawfulness according to § 1 KSchG: "For this [for the unreasonableness] ... the social unreasonableness of the termination is not enough. Rather, it requires additional circumstances to be presented by the employee. These must be in connection with the dismissal or at least the dismissal protection process. ". In other words, the continuation of the employment relationship is not unreasonable for the employee because the termination is ineffective according to § 1 KSchG.

Unreasonableness within the meaning of § 9 Paragraph 1 Clause 1 KSchG is something other than unreasonableness in the sense of § 626 Paragraph 1 BGB: "For the termination of an employment relationship that has not been terminated by a socially unlawful termination by judgment, there is no important reason in terms of § 626 Paragraph 1 BGB exist, which would make the continuation of the employment relationship unreasonable for the employee even up to the expiry of the notice period. It is sufficient that the continuation of the employment relationship for an indefinite period is unreasonable for him. "

Since the KSchG serves to protect existing status and only in exceptional cases to capitalize on it, an employee's application for dissolution is not a "sure-fire success". Ultimately, it depends on the individual case (and the respective judge).

Not enough on their own

  • the ineffectiveness, the social unlawfulness of the termination;
  • the fact that dismissal protection proceedings had to be conducted;
  • different views on legal questions;
  • that the employee has a new job;
  • Reasons for dissolution caused by the employee himself;
  • a renewed dismissal by the employer after the loss of a dismissal protection process in the first instance.

Aspects that speak in favor of a dissolution in individual cases can be:

  • the behavior of the employer during the process : "This can be the case, for example, if the relationship of trust between the parties to the employment contract is irreparably broken due to incorrect, defamatory statements by the employer about the person or the behavior of the employee, or the dismissal protection procedure due to an obviously socially undesirable dismissal on the part of the Employer has been guided with such severity that the employee must expect harassment from the employer and other employees when he returns to the company. "
  • Other termination of the employment relationship : “It is true that when weighting the reasons for termination and determining the amount of the severance payment to be determined, the expected further duration of the employment relationship - viewed from the time of termination - must be taken into account. Whether and with what weight this aspect comes into the balance is a question of the individual case. "
  • Wanting to get rid of it at all costs : "The employment relationship can also be terminated if it is certain that the employer, regardless of the legal opinion of the court represented in the dismissal protection process, definitely intends to part with him and obviously intends to issue dismissals for the same or any other reason, until he has reached his goal. "
  • Frivolous accusation of criminal offenses : "An unreasonable continuation of the employment relationship and thus a reason for termination within the meaning of § 9 Paragraph 1 S 1 KSchG can be given if the employer frivolously and without the existence of objective facts suspects an employee (also during the dismissal protection process), a To have committed a crime. "
relevant point in time

The unreasonableness is to be assessed regularly at the time of the court decision. As an exception, a later date is to be used if the termination date is in the past and the employment relationship has then ended for other reasons.

Application from the employer, Section 9 Paragraph 1 Clause 2 KSchG

scope of application

only with ordinary termination

An application for dissolution by the employer is only admissible in the case of ordinary termination and whether this is only expressed as an alternative or obtained by reinterpreting an extraordinary termination. An extraordinary termination "with a social expiry period" does not open up the possibility of an employer dissolution.

Existence of the employment relationship at the time of termination

The employment relationship must exist at the time of termination applied for, but not at the time of the judicial termination decision.

admissibility

Necessity of social unlawfulness and the absence of violation of a protective standard in favor of the employee

The employer's application for dissolution is to be rejected if the termination is not socially unlawful or, although it is socially unlawful, but also violates other grounds for ineffectiveness, the protective standards in favor of the employee are: "Only in the event that the norm from which the employee makes the termination ineffective derives from the social unlawfulness, does not pursue the purpose of providing him with additional protection, but only serves to safeguard the interests of third parties, the resulting ineffectiveness of the termination does not conflict with the employer's request for dissolution. ". "If the employee invokes the ineffectiveness of the termination for reasons other than social unlawfulness against an application for dissolution by the employer, this presupposes that the ineffectiveness is the result of a violation of a protective standard in favor of the employee. Otherwise there is no reason to deny the employer the preferential treatment of an application for dissolution according to § 9 KSchG in the event of a social dismissal ”.

The BAG fluctuates in the allocation of this requirement: in some cases, the application for dissolution is regarded as "inadmissible" and in some cases as "unfounded".

Justification

Normal case

"According to Section 9 (1) sentence 2 KSchG, the court has to terminate the employment relationship at the employer's request after a successful dismissal protection suit, if there are reasons that do not allow further cooperation between employer and employee to serve the operational purposes. In the employer's opinion, the relevant reasons must be presented in the process and - if disputed - proven. According to the conception of the law, termination of the employment relationship is only possible in exceptional cases. However, the fact that the tensions that arise during the dismissal protection process can make the continuation of the employment relationship seem pointless is not alien to the law "

  • Reasons for dissolution can therefore be:

"Reasons for dissolution for the employer according to Section 9 (1) sentence 2 KSchG can be circumstances that affect the personal relationship with the employee, the assessment of his personality, his performance or his suitability for the tasks assigned to him and his relationship with the other employees. The reasons that do not lead to the expectation of further cooperation between the contractual partners serving the operational purposes do not have to lie in the behavior, in particular not in the culpable behavior of the employee. Rather, it depends on whether the objective situation at the end of the oral hearing in the factual instance can raise concerns with the employer that further cooperation with the employee is endangered (...). Insults, other defamatory statements or personal attacks by the employee against the employer, superiors or colleagues are suitable as grounds for termination. The behavior of a representative of the employee in the dismissal protection process can also lead to the termination of the employment relationship. This applies to statements by the legal representative not initiated by the employee, at least if he adopts them and does not distance himself from them afterwards ”.

A typical lawyer mistake in the dismissal protection process is to "hit the drum" and thus to provide the employer with a template for an application for dissolution. With this aim, employers sometimes try to deliberately provoke employees (representatives) so that the legal dispute can escalate and the court can only determine that the contracting parties have broken down. The process behavior of his legal representative is attributed to the employee as his own. "This applies to declarations of the legal representative not initiated by the employee, at least if the employee adopts them and does not distance himself from them afterwards."

Special case
Management employees within the meaning of Section 14 (2) KSchG

Pursuant to Section 14 (2) KSchG, the employer's application for termination of the employment relationship does not require any justification if the plaintiff is a managerial employee and is entitled to hire and dismiss employees independently.

The concept of managerial staff within the meaning of Section 14 (2) KSchG differs from that in Section 5 (3) BetrVG. An employee (representative) should, due to the risk of Section 14 (2) KSchG, also not carelessly argue that the employee is a “managerial employee”. Often, employees are called "managers" in day-to-day operations who are not in the legal sense. The employer is required to present and provide evidence that the requirements of Section 14 (2) KSchG are met.

Mutual dissolution requests

If both the employee and the employer submit an application for dissolution (rare case), the legal situation is controversial. The BAG has so far left the solution open: If both parties have submitted an application for dissolution, there are basically three possible decisions if the labor court wants to dissolve the employment relationship:

  • (A) The authors, who want to enter into a full review of the reasons for dissolution even in the event of a mutual dissolution request, consider both dissolution requests to be independent of one another and primarily examine the employee's request as a fake auxiliary request and only if this request proves to be unfounded, the real auxiliary request the employer to terminate the employment relationship:
  • (B) If, on the other hand, one assumes without further ado that a termination request is made by both parties, it is more natural to consider both termination requests to be justified and to terminate the employment relationship in response to both requests.
  • (C) A third option is to first examine the employer's application for termination and, in response to this, to terminate the employment relationship without responding to the employee's application for termination.

Severance payment

The court has to determine the amount of the severance payment at its own discretion, taking into account the purpose of the norm and observing the statutory maximum limit, without being bound by the applications of the parties.

Standard purpose of the severance payment

“The severance payment is not exclusively and primarily a replacement for the future loss of earnings. But it is a kind of compensation for the termination of the employment relationship (...). It should on the one hand burden the employer because of the ineffectiveness of the termination, but on the other hand also grant the employee a certain lump-sum compensation for the financial and non-financial damage resulting from the loss of the job ... and serves ... also to help the employee transition to a facilitate other employment relationships, d. H. to make the disadvantages occurring in the transition period more bearable. The granting of a severance payment does not depend on the employee suffering loss of earnings due to the termination of the employment relationship, but if this is the case, then this fact must be taken into account when determining the severance payment amount ”.

Statutory maximum limit (§ 10 KSchG)

According to Section 10 (1) KSchG, severance payments may only be set up to an amount of twelve months' income. “Monthly income” is defined in Section 10 (3) KSchG. In the case of older people (from 50 years of age), Section 10 (3) KSchG allows higher amounts (see the law). Whether Section 10 (3) KSchG violates the prohibition of age (here: youth) discrimination is controversial. The prevailing opinion considers them to be effective.

Procedural matters

In connection with the application for dissolution, difficult procedural questions of legal force etc. sometimes arise. In this respect, the specialist literature should be consulted.

literature

  • Hans Eisemann, in: Küttner: Personalbuch 2015. 22nd edition. 2015. Beck, Munich: Severance payment. A. Labor law marg. 9-40.

Individual evidence

  1. ↑ BAG of September 30, 2010 - 2 AZR 160/09 - Rn. 15 = NZA 2011, 349
  2. ↑ BAG of September 30, 2010 - 2 AZR 160/09 - Rn. 19 = NZA 2011, 349
  3. ↑ based on BAG of September 16, 1993 - 2 AZR 267/93 - AP No. 62 to § 102 BetrVG 1972 [to B III 2 of the reasons]
  4. ↑ Küttner / Eisemann: Personalbuch 2015. 22nd edition. 2015: Severance payment. A. Labor law marg. 16
  5. ↑ BAG of July 11, 2013 - 2 AZR 241/12 - juris Os. = NJW 2013, 3388 = AP No. 69 to § 9 KSchG 1969
  6. ↑ BAG of July 11, 2013 - 2 AZR 241/12 - juris Os. = NJW 2013, 3388 = AP No. 69 to § 9 KSchG 1969
  7. ↑ BAG of March 27, 2003 - 2 AZR 9/02 - NZA 2004, 512 Os.
  8. ^ BAG of March 27, 2003 - 2 AZR 9/02 - juris Os. = AP No. 48 to § 9 KSchG 1969
  9. ↑ BAG of April 27, 2006 - 2 AZR 360/05 - juris Rn. 28 = NZA 2007, 229 = AP No. 55 to § 9 KSchG 1969
  10. ↑ BAG of July 11, 2013 - 2 AZR 241/12 - juris Rn. 21 = NJW 2013, 3388 = AP No. 69 to § 9 KSchG 1969
  11. ^ LAG Rhineland-Palatinate from December 11, 2014 - 3 Sa 556/14 - juris Os.
  12. ↑ BAG of May 24, 2005 - 8 AZR 246/04 - NZA 2005, 1178 (1180)
  13. ^ BAG of March 26, 2009 - 2 AZR 879/07 - juris Os. = NZA 2009, 679
  14. ↑ Küttner / Eisemann: Personalbuch 2015. 22nd edition. 2015: Severance payment. A. Labor law marg. 27 mwN
  15. ↑ BAG of February 23, 2010 - 2 AZR 554/08 - juris Rn. 22 = NZA 2010, 1123
  16. ↑ BAG of August 28, 2008 - 2 AZR 63/07 - juris Rn. 27 mwN = NZA 2009, 275
  17. ↑ BAG, judgment of September 27, 2001 - 2 AZR 389/00 -, juris Rn. 12 = NJW 2002, 1287 = AP No. 41 to § 9 KSchG 1969
  18. ↑ BAG, judgment of May 22, 1980 - 2 AZR 613/78 -, juris Rn. 76 (unpublished)
  19. ↑ BAG, judgment of November 10, 2005 - 2 AZR 623/04 -, juris Rn. 87 = NZA 2006, 491 = AP No. 196 to § 626 BGB
  20. ↑ BAG of 9 September 2010 - 2 AZR 482/09 - juris Rn. 10 = EzA-SD 24/2010, p. 5
  21. ↑ BAG of 9 September 2010 - 2 AZR 482/09 - juris Rn. 11
  22. ↑ BAG of 10 June 2010 - 2 AZR 297/09 - juris Rn. 13 mwN
  23. ^ LAG Lower Saxony of January 18, 2004 - 7 Sa 219/03 - juris Rn. 47 = NZA-RR 2004, 524
  24. ^ LAG Lower Saxony of January 18, 2004 - 7 Sa 219/03 - juris Rn. 50 = NZA-RR 2004, 524
  25. ^ BAG of June 23, 1993 - 2 AZR 56/93 - juris Rn. 34-37 = NZA 1994, 264
  26. ^ BAG of February 15, 1973 - 2 AZR 16/72 - juris Rn. 19 = AP No. 2 to § 9 KSchG 1969
  27. ^ Ua Küttner / Eisemann: Personalbuch 2015. 22nd edition. 2015: Severance payment. A. Labor law marg. 39 mwN