Termination of a vocational training relationship

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The termination of a training relationship can be done both by the trainers as well as by the trainees or by trainees. The termination options are regulated in Section 22 of the Vocational Training Act (BBiG). Section 22 BBiG modifies the termination options that would exist in an employment relationship: termination during the probationary period is made easier. Termination after the probationary period is made more difficult by prohibiting ordinary termination. The latter "in the interests of training and for the protection of the trainee". After the probationary period, the trainee is (properly) "non-terminable" by law. § 22 BBiG cannot be waived at the expense of the trainee, § 25 BBiG.

In practice, the self-resignation of a trainee is usually unproblematic (for this see also the overview in: Vocational training relationship (Germany) ).

Therefore, the following is only about the termination by the trainer.

terminology

In terms of terminology, it should be noted that, contrary to the widespread fuzzy use of language in everyday life, a distinction must be made between ordinary and extraordinary dismissals on the one hand and between terminations with notice and termination without notice on the other. In addition, there is the possibility, sometimes the obligation, of a “social exclusion period”, i. H. the voluntary or legally binding granting of a period of notice beyond the normal case.

So there is

  • ordinary terminations
with a statutory notice period (see Section 622 BGB);
without notice period ("unlimited ordinary termination", ie ordinary termination without notice) - the normal case of a probationary termination according to § 22 para. 1 BBiG;
without notice period with granted or to be granted "social expiry period";
  • extraordinary dismissals
Extraordinary termination without notice - the normal case in the case of Section 22 Paragraph 2 No. 1 BBiG
extraordinary dismissals with a “social expiry period”.

General reasons for ineffectiveness

The general civil law provisions apply to terminations of the apprenticeship contract and, in principle, to terminations by the apprentice in favor of the apprentice, the employees' normal right to protection against dismissal via Section 10 (2) BBiG. If there is no arbitration committee, a complaint must be filed with the labor court (ArbG) within three weeks, otherwise according to §§ 4, 7 KSchG or §§ 13 para. 1 sentence 2 KSchG i. V. m. §§ 4, 7 KSchG the effectiveness of the termination by virtue of law faked (see details below).

Effectiveness of the notice of termination

Overview

The notice of termination is a declaration of intent that must be received and that must be sent to the trainee, taking into account any protection against minors. The trainer is entitled to terminate the contract. Representatives require a power of representation. Representatives who are not corporate representatives (e.g. managing directors) should, as a rule, prove their power of representation by submitting an original power of attorney in order to avoid rejection of the termination according to Section 174 BGB. The termination must be in writing and, in the case of extraordinary termination, contain a written justification.

Access (§§ 130 f. BGB)

A notice of termination must be sent to the trainee (Section 130 BGB). The general principles apply (see Access ). If a deadline has to be observed (probationary period; two-week period in the case of an extraordinary termination), one should avoid delivering the termination "on the last day" by messenger. Access by posting in the mailbox is only deemed to have been received on the same day if the posting is made before normal mail receipt time. When this is exactly is not always clear in practice and in case law.

If the trainee is a minor, the special provision of Section 131 (2) sentence 1 BGB applies, i.e. H. A trainee will only receive notice of termination if and when it is received by his legal representative. If these are both parents, access from one parent is sufficient, Section 1629 Paragraph 1 Clause 2 Half. 2 BGB. According to the prevailing opinion, § 113 BGB does not apply to vocational training relationships. In the event of extraordinary termination, the written reason for the termination must also be sent to the legal representatives and not only to the underage apprentice within the two-week notice period for a minor trainee.

Written form (Section 22 Paragraph 3 Hs. 1 BBiG)

The termination of a trainee must always be in writing, Section 22 Paragraph 3 Hs. 1 BBiG. An extraordinary termination must also be justified in writing, Section 22 Paragraph 3 Hs. 2 BBiG (see below). A notice of termination that is not given in writing is null and void, Section 125 sentence 1 BGB, i.e. H. ineffective from the outset “unsaved”. "Written form" means above all having an original signature (no copy or similar). The general regulations for compliance with a statutory written form apply (see written form ). In this respect, nothing else applies than the termination of employment relationships in accordance with § 623 BGB.

Representation (§§ 164 ff., 174 BGB)

In the apprenticeship relationship, the trainee is originally entitled to terminate, i.e. H. the natural or legal person with whom the vocational training contract has been concluded. Legal persons act through their organs, e.g. B. a GmbH by a GmbH managing director. Natural or legal persons can, as otherwise, be represented in legal transactions. Legally appointed representatives should enclose an original power of attorney (= power of attorney with an original signature) from an original person entitled to terminate with the letter of termination, otherwise the termination is invalid if the termination is rejected immediately in accordance with Section 174 BGB (for details, see Rejection of a declaration of intent due to failure to present a power of attorney ).

Involvement of employee representatives

If there is a works council , a staff council or an employee representative body , it must be heard before the termination of a trainee is announced ((Section 102 (1) sentence 1 BetrVG; ​​Section 79 (1) and (3) BPersVG or the corresponding state employee representation laws; hearing regulations of the employee representation regulations Otherwise, the termination is ineffective (Section 102 (1) sentence 2 BetrVG or Section 79 (4) BPersVG). It should be noted that the termination without notice is not extraordinary, but ordinary termination (see above) Deadlines therefore apply for ordinary termination.

The termination in an anti-dismissal process cannot be based on reasons for termination that existed before the termination was issued and that the employee representatives were not informed. A distinction must be made between the mere substantiation or concretization of a situation already described.

The same principles apply that apply when hearing an employee representative body in the event of a probationary termination or an extraordinary termination by an employee.

In the case of extraordinary termination, shorter consultation periods apply. However, the hearing does not inhibit the two-week period of Section 22 (4) sentence 1 BBiG.

If the relevant State Personnel Representation Act requires a positive consent of the staff council beyond the mere hearing, the following applies: "If the staff council refuses the consent required under the state staff representation law before a probationary notice is given, the notice of termination can only take effect after the statutory period of expression has expired, if the for the refusal of consent stated reasons are legally irrelevant. ". If this is not observed, the termination is ineffective according to § 108 Abs. 2 BPersVG.

Special protection against dismissal

The special protection against dismissal for employees also applies to trainees via Section 10 (2) BBiG. Primarily for reasons of time, a trainee who enjoys special protection against dismissal cannot, in principle, be dismissed during the probationary period.

As special dismissal protection provisions come into consideration - among other things

  • Protection of severely disabled persons, § 85 SGB IX (in conjunction with § 10 Abs. 2 BBiG) (only after 6 months, § 90 Abs. 1 Nr. 1 SGB IX);
  • Maternity protection, Section 9 (1) sentence 1 MuSchG (in conjunction with Section 10 (2) BBiG);
  • Parental leave protection, § 18 Abs. 1 S. 1 BEEG (in conjunction with § 10 Abs. 2 BBiG)
  • Function holder protection according to § 15 Abs. 1 S. 1 KSchG in conjunction with § 103 BetrVG (in conjunction with § 10 Abs. 2 BBiG).

Prohibition of disciplinary measures, § 612a BGB

A (probationary) termination can violate the prohibition of measures of § 612a BGB.

Violation of the prohibition of discrimination, §§ 1, 3, 7 AGG

A (probationary) termination can be ineffective due to a violation of the prohibition of discrimination in §§ 1, 3, 7 AGG. For reasons of Union law, the case law of the BAG does not interfere with Section 2 (4) AGG.

Unfaithfulness or immorality, §§ 242, 138 BGB

A (probationary) termination can (theoretically) be unfaithful or immoral and therefore violate § 242 BGB or § 138 BGB.

  • A termination of the probationary period is not in breach of good faith simply because the trainee did not speak to the parents of an underage trainee beforehand.
  • A termination of the probationary period is not contrary to faith or immorality because it is received by the trainee on the last day of the probationary period

Ordinary termination during the probationary period (Section 22 (1) BBiG)

Overview

According to Section 22 (1) BBiG, termination during the probationary period is permissible without observing a period of notice (“ordinary termination with unlimited notice”) without a reason.

Effectiveness according to § 22 Abs. 1 BBiG

Probationary period

The termination must be received by the trainee within the maximum four-month trial period (Section 20 BBiG) - even on the last day.

Baselessness

No reasons are required for the termination of the probationary period, not even "reasons related to vocational training, in particular aptitude". A mere "dislike" is sufficient.

Timelessness

The probationary period can be terminated “at any time” (Section 22 (1) BBiG) “without observing a notice period”. It can also be issued with the approval of an expiry period "The expiry period must, however, be set in such a way that it does not lead to an inappropriately long continuation of the vocational training contract, which after the final decision of the terminating party should not be carried out until the end of the training".

Individual questions

Termination before the start of the apprenticeship

As in the case of an employment relationship, a vocational training relationship can be terminated for an indefinite period prior to its legal or actual commencement, unless otherwise agreed (which makes little sense because of Section 22 (1) BBiG).

Legal consequences

Reinterpretability?

Under certain circumstances, a delayed termination of the probationary period should be reinterpreted as an extraordinary termination in accordance with Section 140 BGB. It should be more correct that the interpretation can show that not only an ordinary, but also extraordinary termination should be declared. This presupposes that the termination (also) has been declared “for an important reason”, that this has been justified in writing and that a. a possibly necessary hearing of an employee representative also includes an extraordinary termination.

No claim for damages according to § 23 BBiG

A claim for damages due to negligence of dissolution according to § 23 BBiG is excluded according to § 23 sentence 1 BBiG in the case of a probationary termination.

Extraordinary termination after the end of the probationary period (Section 22 (2) No. 1 BBiG)

Overview

The extraordinary dismissal of a trainee according to § 22 Abs. 2 Nr. 1 BBiG is regulated like the extraordinary dismissal for employees: it requires an important reason , § 22 Abs. 2 Nr. 1 BBiG (corresponds to § 626 Abs. 1 BGB). Extraordinary termination may only be given within a two-week preclusive period after becoming aware of it, Section 22 Paragraph 4 Clause 1 BBiG (corresponds to Section 626 Paragraph 2 BGB).

What is important is the atypical requirement to justify the extraordinary termination in writing (Section 22 (3) BBiG).

An extraordinary termination does not have to be given without notice, but can also be given with an expiry period (exception). This only makes sense if the trainee does not contradict himself. In individual cases, the notice of termination must be given with a social preclusive period (e.g. in the event of a business closure).

Written justification (Section 22 Paragraph 3 Hs. 2 BBiG)

While a termination does not have to be justified in writing during the probationary period, this is different for extraordinary terminations, Section 22 (3) BBiG. A violation of the requirement of a written justification makes the termination ineffective, § 125 sentence 1 BGB.

The purpose of the obligation to give reasons is "to enable the terminated person to check whether he or she can recognize the reasons given or not and whether it is promising to object to the notice of termination." It serves to ensure "legal clarity and preservation of evidence" and to protect against being too hasty .

The written - d. H. The reasoning recorded by the signature must reach the trainee within the two-week notice period. A subsequent explanation does not cure. A trainee who is underage will only receive the reason when it is sent to the legal representatives (for access, see above).

Subsequent explanations are not sufficient, nor is a reference to previous oral discussions.

The reasons for the termination must be presented in the letter of termination in such a concrete and comprehensive manner that the reason for the termination is comprehensible to the recipient of the termination. For this purpose, the facts relevant for the termination must be specified in sufficient detail. Pure value judgments or mere catchphrases and general phrases such as “disturbance of the company peace”, “unsustainable behavior”, “frequent lateness” or “other unreliability” are not enough. A trainer would do well to describe the allegations with regard to the time, place and type of the breach of contract so precisely that the recipient of the notice of termination can clearly see which specific behavior is being accused and which specific event the termination is based on. If the trainer wishes to include previously warned breaches of duty, it is not sufficient that these are included in a warning to which he refers. He must also specify this in the letter of termination.

A general yardstick for the requirements of the justification cannot be established, especially since "it will usually be about individually drafted letters of termination from master craftsmen or mostly small or medium-sized companies."

Example: The following reason is not sufficient: “Your daughter's behavior does not allow her to continue working. Despite sufficient admonition, a serious disturbance of the peace can only be avoided by terminating the apprenticeship. "

In the dismissal protection process, the trainer may not rely on reasons that he did not state in the notice of termination.

Two-week period (Section 22 (4) BBiG)

Principle (Section 22 (4) sentence 1 BBiG)

The termination according to Section 22 (4) sentence 1 BBiG must be received by the trainee within two weeks of becoming aware of the reason for termination. This corresponds to the regulation in Section 626 (2) BGB for employees. The principles there apply accordingly to Section 22 (4) sentence 1 BBiG. Section 22, Paragraph 4, Clause 1 of the BBiG is a substantive limitation period . The deadline is mandatory and cannot be waived either by employment contract or by collective agreement.

The "period of § 22 para. 4 sentence 1 BBiG [begins] at the point in time at which the person entitled to terminate becomes aware of the facts relevant for the termination. This is the case as soon as he has reliable and as complete as possible knowledge of the relevant facts, which enables him to decide whether or not to continue the apprenticeship relationship. The decisive facts include both the for and the against a termination. The person entitled to terminate, who so far only has indications of facts that could entitle him to extraordinary termination, can, at his due discretion, conduct further investigations and hear the person concerned without the deadline beginning to run. However, this only applies as long as, for reasonable reasons, he carries out investigations with the necessary haste, which should provide him with comprehensive and reliable knowledge of the facts of the termination. If the opponent is to be heard, this must be done within a short period of time. In general, it must not be longer than a week. In special circumstances it may also be exceeded ”.

Suspension of the deadline (Section 22 (4) sentence 2 BBiG)

In the event of a planned quality negotiation, the two-week period is suspended in accordance with Section 22 (4) sentence 2 BBiG. The regulation is hardly relevant in practice , as there are hardly any other upstream quality procedures (in accordance with collective agreements). It is confusing because the main case of attempting a quality negotiation - the procedure before the arbitration committee pursuant to Section 111 (2) ArbGG after a termination has been pronounced - is not meant by the “quality negotiation” in Section 22 (4) sentence 2 BBiG. It is dangerous because the trainer can misunderstand it in the previous sense and fails to comply with the two-week period of Section 22 (4) sentence 1 BBiG by calling the arbitration board in accordance with Section 111 (2) ArbGG.

Good cause (Section 22 (2) No. 1 BBiG)

Overview

An extraordinary termination according to § 22 Abs. 2 Nr. 1 BBiG presupposes - inevitably - the existence of an "important reason". Section 22 (2) no. 1 BBiG thus ties in with Section 626 (1) BGB. “Understanding the important reason in terms of Section 22 (2) No. 1 BBiG thus corresponds to the important reason within the meaning of Section 626 (1) BGB ". However, this dogmatic parallelization must not hide the fact that the special features of a vocational training relationship must be taken into account.

Description of the important reason

An important reason i. S. d. Section 22 (2) No. 1 BBiG exists "if there are facts on the basis of which the terminating party cannot be expected to continue the apprenticeship until the end of the apprenticeship period, taking into account all the circumstances of the individual case and weighing the interests of both parties".

In the case of Section 626 (1) of the German Civil Code, the BAG applies a two-stage check: first, it must be asked whether an allegation is an “important reason per se”. Then, as part of the necessary balancing of interests, it must be asked whether a continuation of the employment relationship is reasonable in the specific circumstances of the individual case.

As in labor law, termination is also “the last resort” (ultima ratio) in vocational training law, the principle of proportionality applies - ie in case of doubt, a prior warning is required - and it is not about the sanction of past misconduct, but about the negative forecast for the future , ie the prognosis that the apprenticeship relationship cannot be continued in a reasonable manner.

Weighing of interests and special features of the vocational training relationship

The peculiarities of a vocational training relationship must be taken into account at the latest when weighing up interests. There is a tendency to try to protect the trainee from dropping out of his or her training “by bending or by breaking”. What "clearly" justifies an extraordinary termination for a normal employee does not justify the termination of a trainee without further ado.

Aspects (topoi) - at the latest in the context of the weighing of interests - include:

  • possibly the young age of the trainee
  • the typical immature "level of character development" of a trainee, which in the event of misconduct may lead to the assumption of a mere "sin of youth"
  • the training purpose of the contractual relationship
  • The previous duration of the apprenticeship relationship: the longer the apprenticeship relationship existed, the more important the reason for termination must be. "If the trainee is already in the third year of training, termination for an important reason is only possible in the event of the most serious breaches of duty or impairment. Shortly before the final examination or the end of the training period, the trainee can only terminate the contract in exceptional cases (eg if a criminal offense has occurred) ”. A termination without notice shortly before the end of the training is hardly possible.
  • General allegations are not enough.
  • As a rule, a previous warning is required . A previous warning can only be dispensed with if the trainee has committed a serious breach of duty, the illegality of which was immediately apparent and acceptance by the trainee is obviously excluded.

Casuistry

Comprehensive individual case law is demonstrated in the relevant comments on Section 22 BBiG. The accents vary; ultimately, decisions are largely made on a case-by-case basis. One should therefore caution against rash generalizations.

Suspicion of termination

According to the relevant case law of the BAG, which has been defended against criticism, a suspected dismissal is also permitted in vocational training . The special features of the vocational training relationship must be taken into account:

"The urgent suspicion of a serious breach of duty on the part of the trainee can constitute an important reason for terminating the vocational training relationship in accordance with Section 22 (2) No. 1 BBiG." "A suspicion can only constitute an important reason within the meaning of Section 22 (2) No. 1 BBiG for termination if the suspicion makes it objectively unreasonable for the trainee to continue their training, even taking into account the special features of the training relationship. This requires an assessment of the circumstances in each individual case. "" If the trainee commits an illegal and willful - possibly criminal - act directly against the assets of his trainee, he at the same time seriously violates his obligation under the law of obligations to be considerate according to § 10 para 2 BBiG in conjunction. § 241 Abs 2 BGB and abuses the trust placed in it. This also applies if the illegal act affects objects of low value or has only resulted in minor, possibly no damage at all. The decisive factor is the breach of trust associated with the breach of duty. "" The trainee has only done everything reasonable to clarify the matter when he has given the trainee the opportunity to comment. The need to be heard before giving notice of a suspected dismissal is a result of the principle of proportionality. The scope of the investigation obligations and thus also the structure of the hearing depends on the circumstances of the individual case. Both in the preparation and in the implementation of the hearing, the trainee must be aware of the trainee's typically existing inexperience and the resulting risk of excessive demands in accordance with Section 10 (2) BBiG in conjunction with. § 241 Abs 2 BGB to take into account. In principle, it is not necessary to inform the trainee about the intended content of the conversation before a hearing is carried out. "

Legal consequences

Request for dissolution?

In the case of the ineffectiveness of an especially extraordinary (immediate) termination, an employee within the scope of the KSchG according to § 13 para. 1 sentence 3 KSchG can, in the case of the unreasonable continuation of the employment relationship within the scope of the dismissal protection process, apply for the court to terminate the employment relationship against determination terminates a severance payment to be paid by the employer (see termination of the employment relationship (Germany) ). This regulation does not apply accordingly to vocational training relationships.

Claim for damages according to § 23 BBiG

If the apprenticeship relationship is terminated prematurely after the probationary period has expired, the trainee can demand compensation for the damage from the trainee if the trainee is responsible for the reason for the termination (Section 23 (1) sentence 1 BBiG).

This can be the case if the trainee cancels the apprenticeship without notice without an important reason within the meaning of Section 22 (2) No. 1 BBiG. “Unlawful and therefore legally ineffective termination is often the starting point for claims for damages. The decisive factor is that at least one part of the contract breaks away from the apprenticeship relationship ”. In the event of an invalid termination, the trainee is presumed to be at fault according to Section 280 of the German Civil Code. The trainer can refute this presumption if he can prove that a sensible, carefully considered employer would also have given notice of extraordinary termination.

Entitlement to continued employment

In the absence of applicability of the provisions of the KSchG on social unlawfulness, a trainee cannot have any special statutory entitlement to continued employment under Section 102 (5) BetrVG or Section 79 (2) BPersVG.

However, this does not exclude a general right to continued employment , which exists under the same conditions as for the employee, i. H. As a rule (only) after the first instance victory in the dismissal protection process.

Late acceptance fee

If the termination by the trainee is ineffective, the trainee, like an employee, is entitled to payment of the training remuneration as default wages in accordance with Section 615 BGB (in conjunction with Section 10 (2) BBiG).

Procedural law

Overview

The procedural law when a trainee is dismissed by a trainee is hardly transparent for non-lawyers. A distinction must be made between the case that an arbitration committee for training disputes according to Section 111 (2) ArbGG exists or not. If there is none, a lawsuit must be filed with the labor court (ArbG) within the three-week period of §§ 4, 7, 13 KSchG. If there is one, an application for dismissal protection that does not have a deadline must be submitted to the arbitration committee. Decides this by saying that one is not accepted, shall be filed with the Labor Court within two weeks of action.

If it is unclear whether there is a competent arbitration committee, the trainee should, as a precaution, file a complaint with the ArbG within the three-week period. In the ArbG there are legal petitioners who can take legal action, so that a lawyer is not required for the mere filing of a lawsuit. If it turns out that a procedure before the arbitration committee has to take place first, the procedure at the labor court can be suspended or taken "on request", i. H. ("Parked"). If an agreement is reached in the arbitration committee, the complaint before the ArbG is withdrawn. If no agreement is reached, the ArbG procedure can continue to run - without ever having a deadline risk.

The legal matter is very controversial in the literature. In practice, only the Federal Labor Court (BAG) has the say. In the following, therefore, only the case law is dealt with.

Procedure before the arbitration committee (Section 111 (2) ArbGG)

Necessity of proceedings before the arbitration committee (Section 111 (2) sentence 5 ArbGG)

According to Section 111, Paragraph 2, Clause 1 of the ArbGG, so-called arbitration committees can be formed at the guild or the Chamber of Commerce and Industry for professional training disputes . If there is a competent arbitration committee, it is a process requirement for a complaint before the ArbG, i. H. A complaint before the ArbG is only / will only then be admissible if a procedure before the arbitration committee has taken place.

“The requirement to appeal to the committee before taking action against the labor court is due to the consideration of the special relationship of trust between the trainee and the trainee. In order to protect and maintain this relationship, disputes should be settled before committees composed of equal numbers. The aim of the regulation is to avoid, as far as possible, that the parties to the vocational training contract are litigated before the court as long as there is uncertainty about the legally effective termination. "

Jurisdiction

The jurisdiction of an arbitration committee can be difficult to determine:

  • If there is a dispute as to whether or not the apprenticeship has been terminated by notice, the arbitration committee is responsible.
  • If the vocational training relationship is undisputedly ended, the arbitration committee is no longer responsible. Not even for residual claims or claims for damages.
  • The arbitration committee with which the apprenticeship is or will be or should be registered is responsible. It is irrelevant whether the vocational training relationship is actually registered.
Call period?

According to the controversial but consistent case law of the BAG, the arbitration committee does not have to be invoked within a period, in particular not within the three-week period of §§ 4 sentence 1, 13 paragraph 1 sentence 2 KSchG. The right to appeal to an arbitration committee can only be forfeited (Section 242 BGB) (rare exception). Contrary to the literature, the BAG refuses to use the three-week period to specify the forfeiture.

Two-week period of action after the end of the proceedings before the arbitration committee (Section 111 (2) sentence 3 ArbGG)

The arbitration committee shall terminate the proceedings by saying that decision and the decision taken by him saying is not accepted within a week from both sides, "may" (ie "must"!) "Raised within two weeks after which was issued saying an action before the competent Labor Court become ”, § 111 Abs. 2 Satz 3 ArbGG.

Section 111 (2) sentence 3 ArbGG is (only) a procedural preclusive period : “If a complaint is not filed with the labor court against an unrecognized verdict of the committee in due time, this only has the procedural consequence that the subject of dispute negotiated before the committee is not brought by anybody Party can be brought before the labor courts. " This leads to "strange results" (Schaub).

Example: The trainer terminates the trainee. The arbitration procedure is carried out. The arbitration committee decides by "Spruch" that the termination is effective. The trainee misses the two-week period of § 111 Paragraph 2 Clause 3 ArbGG. Then an action against the dismissal at the ArbG is inadmissible. Nonetheless, the trainee may sue for default in acceptance or continued employment on the grounds that the termination is ineffective, and can get his right.

In practice, it must be ensured that the two-week period in Section 111 (2) sentence 3 ArbGG has actually been set in motion. The period begins with the delivery of the award. But only if the latter has received proper instructions about the obligation to bring an action before the ArbG within the meaning of Section 111 (2) sentence 4 ArbGG i. V. m. Section 9 (5) of the ArbGG, which must be signed not only by the chairman but also by the other committee members.

Dismissal protection suit before the labor court

Overview

The prerequisites for a lawsuit before the ArbG differ, depending on whether a competent arbitration committee exists or not.

Failure to have an arbitration committee

"According to the established case law of the Federal Labor Court (...), the provisions of the Dismissal Protection Act on the filing of legal actions for extraordinary dismissals of vocational training relationships are to be applied immediately if no committee is formed in accordance with Section 111 (2) ArbGG."

If the three-week period is not observed, the validity of a termination according to § 4 sentence 1, § 13 paragraph 1 sentence 2, § 7 KSchG, mediated by the general clause of § 10 paragraph 2 BBiG, is faked.

A subsequent admission according to § 5 KSchG of the dismissal protection action may be considered. In doing so, "the young age and inexperience of a trainee in working life should be adequately taken into account."

Since it is sometimes difficult to determine whether an arbitration committee is responsible for one's own vocational training relationship, as a precaution a complaint should be filed with the ArbG within a period of three weeks (see above).

Existence of an arbitration committee

Implementation of an arbitration procedure before the arbitration committee as an admissibility requirement

The appeal to the competent arbitration committee is a prerequisite for the admissibility of a complaint with the ArbG ( process requirement) according to Section 111 (2) sentence 5 ArbGG .

This process requirement must be checked ex officio . “Official examination does not mean, however, that the court investigates and clarifies ex officio; Rather, the court has to draw the plaintiff's attention to concerns and to ask them to demonstrate the admissibility requirements and, if necessary, to prove them ”. The trainee must submit that either there is no arbitration committee or that there is, the responsible arbitration committee has rejected a procedure.

If there is a competent arbitration committee, but this refuses to carry out a procedure, legal action may be taken directly before the ArbG. If there is a rejection of an "essential preliminary question", the BAG also allows a direct action before the ArbG. If a non-competent body rejects a procedure, this does not release the person from carrying out an arbitration procedure before the competent arbitration committee.

The same applies - d. H. An opportunity to take legal action is open to the ArbG - if the arbitration committee does not terminate the procedure with a ruling , but only negotiates.

Three-week period of action according to §§ 13 Paragraph 1 Clause 2, 4 Clause 1 KSchG i. V. m. § 10 Abs. 2 BBiG?

If there is an arbitration committee in accordance with Section 111 (2) ArbGG, this has the consequence, according to the established case law of the BAG, that the three-week period for filing a complaint in accordance with Section 13 (1) sentence 2, 4 sentence 1 KSchG i. V. m. Section 10 (2) BBiG does not apply, not even analogously.

Claim

If there is no specific action for protection against dismissal according to §§ 13 para. 1 sentence 2, 4 sentence 1 KSchG, no application according to § 4 KSchG, but a general declaration request according to § 256 para. 1 ZPO is to be submitted. If an application for protection against dismissal is nevertheless made, in case of doubt it is to be considered a general application for determination i. S. d. To be interpreted in accordance with Section 256 (1) ZPO.

Determination interest

If there is no need for an application for protection against dismissal to avoid a fiction of the effectiveness of the termination, the question arises as to the determination interest necessary for a mere declaratory action. "There is an interest in making a statement ... only if this has consequences for the present or the future."

This may not be a problem in the first, but in the appellate or revision instance, if the apprenticeship relationship is undisputedly ended, for example because the exam has been passed, and it is only a matter of processing.

  • If the question of the effectiveness of the termination has an impact on a certificate still to be issued, on further remuneration as well as damages according to § 23 BBiG “, the BAG affirmed an interest in making a determination.
  • If a certificate has been issued and it only concerns claims for default in acceptance from the past, an interest in making a determination must be denied. An interest in making a determination is also not to be affirmed because of a blocking period imposed by the employment agency: the employment agency is not bound by a decision by a labor court.

See also

literature

To § 22 BBiG

  • Erfurt Commentary / Schlachter, 16th edition. 2016, BBiG, § 22
  • Herrmann, in: Däubler / Hjort / Schubert / Wolmerath, Arbeitsrecht, 3rd edition 2013, BBiG § 22
  • Wohlgemuth / Pepping, BBiG, 2011, § 22

On Section 111 (2) ArbGG

  • Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111.

Individual evidence

  1. ↑ In the following, “the trainee” also means “the trainee”. The law uses the plural.
  2. ↑ § 22 BBiG 2005 corresponds to § 15 BBiG 1969, which is why the case law on § 15 BBiG 1969 can be transferred to § 22 BBiG.
  3. ↑ BAG of May 27, 1993 - 2 AZR 601/92 - juris Rn. 13 = NJW 1994, 404 = AP No. 9 to § 22 KO
  4. ↑ Exception: termination in bankruptcy according to § 113 InsO. See BAG of May 27, 1993 - 2 AZR 601/92 - NJW 1994, 404 = AP No. 9 to Section 22 KO; Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 14th
  5. ↑ According to Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 9 the throw-in must / should be made before 12 p.m.
  6. ↑ BAG of December 8, 2011 - 6 AZR 354/10 - juris Rn. 23 = NZA 2012, 495
  7. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 73-75
  8. ↑ Biebl, in: Ascheid / Preis / Schmidt, Kündigungsrecht, 4th edition 2012, BBiG § 22 Rn. 30th
  9. ↑ See for example BAG of December 8, 2011 - 6 AZR 354/10 - juris Rn. 27 = NZA 2012, 495
  10. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 6th
  11. ↑ See in detail Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 67, 83 f.
  12. ↑ ZB Sections 79, 87 No. 8 PersVG Berlin
  13. ↑ BAG of November 19, 2009 - 6 AZR 800/08 - juris Ls. = NZA 2010, 278
  14. ↑ BAG of November 19, 2009 - 6 AZR 800/08 - juris Rn. 10 = NZA 2010, 278
  15. ^ So Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 10
  16. ↑ BAG of December 10, 1987 - 2 AZR 385/87 - juris Ls. = NZA 1988, 428 = AP No. 11 to § 18 SchwbG
  17. ↑ BAG of December 10, 1987 - 2 AZR 385/87 - juris Rn. 17 = NZA 1988, 428 = AP No. 11 to § 18 SchwbG
  18. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 2
  19. ↑ BAG of March 8, 1977 - 4 AZR 700/75 - juris Rn. 19 = EzB BBiG Section 15 (1) No. 5
  20. ↑ BAG of December 8, 2011 - 6 AZR 354/10 - juris Rn. 43 = NZA 2012, 495
  21. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 6 mwN
  22. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 2 mwN
  23. ↑ BAG of March 8, 1977 - 4 AZR 700/75 - juris Rn. 18 = EzB BBiG § 15 Abs. 1 Nr. 5
  24. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 6th
  25. ↑ BAG [10. November 1988] - 2 AZR 26/88 - NJW 1989, 1107 = juris Ls.
  26. ↑ BAG [10. November 1988] - 2 AZR 26/88 - juris Ls. = NJW 1989, 1107
  27. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 1; LAG Düsseldorf from September 16, 2011 - 6 Sa 909/11 - juris Ls. = NZA-RR 2012, 127; in detail Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 4th
  28. ^ So Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 9
  29. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 7th
  30. ↑ Section 22 (3) BBiG corresponds to Section 15 (3) BBiG 1969. The case law on Section 15 (3) BBiG old applies accordingly.
  31. ↑ BAG of July 23, 2015 - 6 AZR 490/14 - juris Rn. 22 = NZA-RR 2015, 628
  32. ↑ BAG of November 29, 1984 - 2 AZR 354/83 - juris Rn. 17 = NZA 1986, 230 = AP No. 6 to § 13 KSchG 1969
  33. ↑ BAG of June 17, 1998 - 2 AZR 741/97 - juris Rn. 21st
  34. ↑ Biebl, in: Ascheid / Preis / Schmidt, Kündigungsrecht, 4th edition 2012, BBiG § 22 Rn. 26th
  35. ↑ BAG of July 23, 2015 - 6 AZR 490/14 - juris Rn. 22 = NZA-RR 2015, 628
  36. ↑ BAG of February 10, 1999 - 2 AZR 176/98 - juris Rn. 18 f. = NZA 1999, 602
  37. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 80
  38. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 82
  39. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 82
  40. ^ So Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 82
  41. ↑ BAG of June 17, 1998 - 2 AZR 741/97 - juris Rn. 20th
  42. ↑ See BAG of November 25, 1976 - 2 AZR 751/75 - juris Rn. 33 = AP No. 4 to Section 15 BBiG
  43. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 91 = NZA 2015, 741
  44. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 8th
  45. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 66
  46. ↑ Biebl, in: Ascheid / Preis / Schmidt, Kündigungsrecht, 4th edition 2012, BBiG § 22 Rn. 23
  47. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 94 = NZA 2015, 741
  48. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 8th
  49. ↑ The previous standard of Section 15 (2) No. 1 BBiG old version read accordingly. The case law on this can therefore be transferred to Section 22 (2) No. 1 BBiG.
  50. ↑ § 25 BBiG.
  51. ^ So BAG dated February 12, 2015 - 6 AZR 845/13 - juris Rn. 38 = NZA 2015, 741
  52. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 38 = NZA 2015, 741
  53. ↑ See e.g. B. BAG of July 7, 2005 - 2 AZR 581/04 - juris Rn. 21 = NZA 2006, 98 (99): “In the context of § 626 I BGB, it is first necessary to check whether a certain situation is suitable as an important reason for termination without the particular circumstances of the individual case. If such a situation exists, a further examination is required as to whether the continuation of the employment relationship is reasonable or not, taking into account the specific circumstances of the individual case and weighing the interests of both parties to the contract. "
  54. ↑ See also ArbG Essen from September 27, 2005 - 2 Ca 2427/05 - NZA-RR 2006, 246 (247)
  55. ↑ ArbG Essen from September 27, 2005 - 2 Ca 2427/05 - NZA-RR 2006, 246; Erfurt Commentary / Schlachter, 16th edition. 2016, BBiG, § 22 Rn. 3 mwN
  56. ↑ Biebl, in: Ascheid / Preis / Schmidt, Kündigungsrecht, 4th edition 2012, BBiG § 22 Rn. 14th
  57. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 3 mwN
  58. ↑ BAG of May 10, 1973 - 2 AZR 328/72 - AP BBiG § 15 No. 3
  59. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 17th
  60. ↑ So Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 3
  61. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 3
  62. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 20th
  63. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 4; Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 17th
  64. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Ls. = NZA 2015, 741
  65. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Os. = NZA 2015, 741
  66. ↑ BAG of November 29, 1984 - 2 AZR 354/83 - AP No. 6 to § 13 KSchG 1969; Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 97
  67. ↑ BAG of August 17, 2000 - 8 AZR 578/99 - juris Rn. 15th
  68. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 23 Rn. 11 mwN
  69. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 98
  70. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 98
  71. ↑ Wohlgemuth / Pepping, BBiG, 2011, § 22 Rn. 99
  72. ^ BAG of September 18, 1975 - 2 AZR 602/74 - juris Rn. 10 = NJW 1976, 909 = AP No. 2 to § 111 ArbGG 1953
  73. ↑ Erfurt Commentary / Schlachter, 16th ed. 2016, BBiG, § 22 Rn. 9
  74. ↑ BAG of October 24, 1985 - 2 AZR 505/83 - juris Rn. 16
  75. ↑ Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111 Rn. 63
  76. ↑ Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111 Rn. 22nd
  77. ↑ BAG of July 23, 2015 - 6 AZR 490/14 - juris Rn. 23 = NZA-RR 2015, 628
  78. ↑ BAG of October 9, 1979 - 6 AZR 776/77 - juris Rn. 14 = NJW 1980, 2095 = AP ArbGG 1953 § 111 No. 3
  79. ↑ BAG of October 9, 1979 - 6 AZR 776/77 - juris Ls. = NJW 1980, 2095 = AP ArbGG 1953 § 111 No. 3
  80. ↑ Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111 Rn. 44 mwN
  81. ↑ BAG of July 23, 2015 - 6 AZR 490/14 - juris Rn. 45 = NZA-RR 2015, 628
  82. ↑ So Herrmann, in: Däubler / Hjort / Schubert / Wolmerath, Arbeitsrecht, 3rd edition 2013, BBiG § 22 Rn. 30th
  83. ↑ Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111 Rn. 19th
  84. ↑ BAG of October 24, 1985 - 2 AZR 505/83 - juris Rn. 13
  85. ↑ See BAG of October 24, 1985 - 2 AZR 505/83 - juris Rn. 18th
  86. ↑ BAG of October 24, 1985 - 2 AZR 505/83 - juris Rn. 15; Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111 Rn. 21st
  87. ^ Kritisch Prütting, in: Germelmann / Matthes / Prütting, ArbGG, 8th edition 2013, § 111 Rn. 19 mwN
  88. ↑ BAG of October 24, 1985 - 2 AZR 505/83 - juris Rn. 10
  89. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 25 = NZA 2015, 74
  90. ↑ BAG of February 12, 2015 - 6 AZR 845/13 - juris Rn. 26 = NZA 2015, 741
  91. ↑ BAG of July 23, 2015 - 6 AZR 490/14 - juris Rn. 18th
  92. ^ So BAG dated February 12, 2015 - 6 AZR 845/13 - juris Rn. 26 mwN = NZA 2015, 741
  93. ↑ BAG of July 23, 2015 - 6 AZR 490/14 - juris Rn. 18th