Termination of Employment

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Under a termination of employment is understood in labor the various options under which an employment relationship may end.

General

The termination of an employment relationship is usually a significant event for employees because it affects their professional and economic livelihood . In normal working conditions an employee may assume that this momentous event does not occur for a long time and he at best, until his retirement on employment can hold. The employment contract is a long-term obligation and is therefore, especially in the case of normal employment, for an indefinite period. Termination therefore requires a specific event. Employers or employees can have an interest in terminating an employment relationship for a variety of reasons. For this purpose, the law provides for certain organizational rights with the help of which the termination of an employment relationship can be brought about.

species

The normal case is unilateral termination through termination . The amicable termination, i.e. the termination desired by employer and employee, is becoming increasingly important. This may already have existed at the time of hiring (in the case of fixed-term employment contracts ) or it may have been carried out afterwards ( termination agreement ). Further termination facts are the contestation , the occurrence of a dissolving condition (example: “limited until the sick employee Ms. N. recovers”), contractually agreed age limits , the death of the employee and the termination of the employment relationship by judgment . No reasons for termination are the death of the employer, a legal transfer of business in accordance with Section 613a of the German Civil Code (BGB) , a business shutdown and the insolvency of the employer.

termination

Ordinary termination

The ordinary termination causes the termination of employment unilaterally. Notice periods that result from the law ( § 622 BGB), a collective agreement or the employment contract must be observed . The termination must be made in writing in accordance with § 623 BGB . In addition to the general written form requirement, a written justification for the termination or the specification of a reason for termination is only required by individual statutory provisions.

The termination of the employee is generally not subject to any further requirements. Within the scope of the Employment Protection Act , the employer must demonstrate reasons that socially justify the termination. The employer can only terminate certain groups of people with special protection against dismissal for extraordinary reasons or with the consent of an authority. An effectiveness check of the termination, in particular the reason for the termination, the notice period and other formalities, usually only takes place in the context of dismissal protection proceedings before the labor court responsible for the legal dispute.

If there is a repayment clause, the termination by the employee may result in the financial reimbursement of benefits received or paid to the employer.

Extraordinary termination

An extraordinary notice may be issued without notice or notice. It needs an important reason to be effective . In addition, it must take place within two weeks of knowing this reason.

This requirement applies to both employee and employer terminations. While an important reason for termination by an employer can be seen, for example, in the commission of criminal offenses to the detriment of the employer (especially theft), an important reason for an extraordinary termination of the employee is regularly the considerable delay by the employer in paying wages.

Change notice

A change notice is the termination of an employment relationship with an offer to conclude a new contract in order to continue it on changed conditions.

Termination Agreement

The mutual termination ( termination contract ) of an employment relationship is permissible. It must (like the fixed-term agreement and the termination) be in writing to be effective ( Section 623 BGB ). However, the written form does not apply to the amicable termination in the form of a winding-up contract (agreement on the modalities of the processing of the employment relationship after the termination has been issued to avoid negative consequences for the granting of unemployment benefits). Disputes before the labor court about dismissals often end with a settlement about the termination of the employment relationship against payment of a severance payment . In substance, this is also a settlement agreement. The consequences under social law must be considered. According to the new case law of the Federal Social Court and the implementation instructions of the Employment Agency, the conclusion of a termination or liquidation agreement often leads to a blocking period when receiving unemployment benefits .

Employees should note that with the conclusion of a termination agreement they lose all protection against dismissal ; a subsequent action for protection against dismissal is no longer permissible. This also applies if the termination agreement was presented “surprisingly” by the employer, for example in a conflict situation. The protection that applies to doorstep selling , for example , does not apply here according to current case law. Affected employees should ask for at least one day's reflection period before signing a termination agreement and, if necessary, carefully examine the contract with legally qualified help. Under certain circumstances, termination without notice may even be more favorable because it can be fully examined in court, which is only applicable to a limited extent for the termination agreement.

Dissolution judgment

The dissolution judgment is a special feature of labor law. The labor court can dissolve an employment relationship against payment of a severance payment by way of a decision by way of a draft lawsuit if a termination by the employer is socially unfriendly and therefore ineffective. Such a decision is only possible under strict conditions.

Dispute

An employment relationship can be contested if the contestant made a mistake when entering into the contract, was threatened or fraudulently deceived. It should be noted, however, that deceiving an employee does not give the employer the right to challenge it, unless the deception was unlawful, i.e. he asked an inadmissible question, and the employee had the right to lie .

A dispute usually eliminates the contested contract retrospectively as if it never existed ( ex tunc ) . Services are reversed. Since you cannot reverse the work performed, the challenge of an employment relationship that has been implemented (so-called defective employment relationship) does not have a retroactive effect, but rather like a termination without notice with immediate effect. However, certain special services can be reversed.

death

The employee's death ends the employment relationship. Since work is a highly personal obligation ( Section 613 BGB), it is not inherited. Wage and salary claims, however, are passed on to the heirs. A compensation claim that is due can also be demanded from the heir.

The employment relationship remains fundamentally unaffected by the death of the employer, the heirs take over the legal position of the deceased (§ § 1922 , § 1967 BGB).

See also

Individual evidence

  1. ^ A b Hans Brox, Bernd Rüthers, Martin Henssler: Labor law . 17., rework. Edition. Kohlhammer, Stuttgart 2007, ISBN 978-3-17-019955-2 , p. 155 (Google Books) .
  2. ^ Rabe von Pappenheim (ed.): Lexicon labor law . 15th edition. Rehm, Heidelberg 2015, ISBN 978-3-8073-0839-5 , p. 17 (Google Books) .