Dismissal protection suit
The employment protection in labor is in Germany through an unfair dismissal claim to the competent labor court pursued. The action must be filed no later than three weeks after receipt of the written notice of termination, otherwise the notice of termination is deemed to be effective , KSchG (material preclusion ). This also applies in the case of repeated termination . Subsequent admission of the action is only possible under very strict conditions. The action is aimed at establishing the continued existence of the employment relationship at the time the notice of termination was received. The vast majority of all dismissal protection processes end through a settlement in which the employment relationship is mutually terminated upon payment of severance pay . The effectiveness of a termination is checked under all legal aspects and in particular against the provisions of the Employment Protection Act (KSchG) by the labor court, as far as the plaintiff invokes legally relevant reasons for ineffectiveness. The law speaks of the “social justification” of dismissal.
A complaint to bring an action for protection against dismissal must at least:
- designate the court seised,
- indicate the claimant and the defendant ,
- an application (included after sentence 1 Consumer Protection Act directed to the detection of the request must be the "that the duty ratio by the termination is not dissolved is". A (only) corresponding to the text of the law claim is determined sufficiently d i. p. Paragraph 2 No. 2 ZPO ),
- contain the facts giving rise to the claim .
The court examines the social justification of the termination according to the criteria of the Dismissal Protection Act , insofar as this is applicable to the company and the employment relationship , as well as other reasons for ineffectiveness, such as a lack of written form or a breach of a contractual, collective bargaining agreement or a ban on termination regulated in a company agreement. In the event of an extraordinary termination , it is also checked whether there was an important reason within the meaning of BGB . However, all grounds for ineffectiveness must be asserted by the plaintiff, the court does not examine these on its own, the principle of submission applies .
If the complaining party gets through with its complaints, the termination is ineffective and the contractual relationship remains unchanged. If the notice period has expired in the meantime, the employer is regularly in default of acceptance and must grant the remuneration retrospectively as if work had been carried out.
As a rule, the plaintiff will also submit an application for continued employment, because if he wins in the first instance, he has a provisional right to continued employment based on judicial law until the proceedings have been legally concluded.
The circumstances that existed when the notice of termination was given are decisive for the effectiveness of the termination. As with all structuring rights , the effectiveness of the termination is only based on the circumstances at the time the declaration was received by the recipient. If an operational dismissal was justified at this point in time and the situation of the company changes within the notice period in such a way that continued employment now appears possible, this does not render the dismissal ineffective; In this case, however, the employee can be entitled to re- employment .
The effectiveness of a termination notice can also be attacked with the so-called amendment protection suit. The employee can accept the termination of the change - subject to a time limit - with the proviso that the changes are not socially unjustified, KSchG. Then there is no risk of losing your job. However, after the notice period has expired, he must first work under the new conditions.
The court examines the social justification of each individual change and other reasons for ineffectiveness as in the case of the dismissal protection suit. If it is missing (even for a single amendment to the contract, even if it is the most minor), the entire termination of the amendment is not socially justified. The employee then has a right to continued employment under unchanged contractual conditions. If, on the other hand, the notice of change is socially justified, i.e. if the employee loses the process, he must continue to work under the changed conditions, but will keep his job if he has made the reservation. Otherwise, the change notice becomes a termination notice.
- BAG, judgment of December 13, 2007, 2 AZR 818/06, full text , (PDF file; 42 kB)
- Established case law, cf. only BAG 3 AZB 93/08
- Fundamental: BAG September 6, 1989 AP KSchG 1969 § 1 illness no. 22; February 27, 1997 AP KSchG 1969 § 1 Reinstatement No. 1; April 29, 1999 AP No. 36 to § 1 KSchG 1969 illness.