Mass dismissal notice

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An employer must be in Germany a mass layoff display against the employment agency deliver when a large number of workers to terminate intended. Failure to report or incorrect notification can render the terminations ineffective .

term

The mass dismissal notification is a term used in German labor law . It is regulated in Section 17 of the Employment Protection Act (KSchG). The purpose of the provision is to establish an obligation, independent of individual protection against dismissal , to notify the Employment Agency of any layoffs that exceed quantified limits and to involve the works council in this process. This is based on labor market policy goals. The obligation to notify should give the employment agency the opportunity to initiate timely measures with the help of which the workers affected by the dismissal are placed in new employment .

requirements

According to § 17 KSchG, the employer has to report to the employment agency before he

  1. in companies with generally more than 20 and less than 60 employees more than 5 employees,
  2. in companies with generally at least 60 and less than 500 employees, 10 percent of the employees regularly employed in the company or more than 25 employees,
  3. in companies with at least 500 employees, at least 30 employees

discharged within 30 calendar days. Other terminations of employment that are initiated by the employer are equivalent to dismissals.

content

A distinction must be made between the so-called target provisions and the must provisions .

Must provisions

The notification must contain the minimum information of Section 17 (3) sentence 4 KSchG. These are:

  1. the name of the employer,
  2. the seat and the type of business,
  3. the reasons for the planned redundancies,
  4. the number of employees usually employed,
  5. the professional groups of the employees usually employed,
  6. the number of workers to be made redundant,
  7. the professional groups of the workers to be dismissed,
  8. the periods of discharge,
  9. the criteria for the selection of workers to be made redundant.

Target provisions

Section 17 (3) sentence 5 KSchG states that certaininformation that goes beyond Section 17 (3) sentence 4 KSchG - should be madein the notification in agreement with the works council:

  1. Age of the workers to be dismissed,
  2. Occupation of the workers to be dismissed,
  3. Gender of the workers to be dismissed,
  4. Nationality of the workers to be made redundant.

Error in the display

A distinction must be made between the omitted and the inadequate notification. If the advertisement is defective, it should be noted that not every error in the advertisement leads to its ineffectiveness.

Failure to report this now leads to the dismissal being ineffective.

In its earlier case law, the Federal Labor Court (BAG) viewed the lack of notification only as an obstacle to dismissal, but not as a reason for ineffectiveness. After the decision of the European Court of Justice of January 27, 2005, the Federal Labor Court no longer has to adhere to this.

An advertisement in which even a single mandatory entry is missing has no legal effect. Errors and incompleteness in the mandatory information generally lead to the ineffectiveness of the advertisement.

The lack of the target information of § 17 Abs. 3 S. 5 KSchG has no effect on the effectiveness of the notification itself. The advertisement is correct and complete even without the target information. However, the employment agency can and will clarify and inquire about the target information within the framework of hearings in accordance with Section 20 (3) KSchG.

Negative certificate

The employer does not have to comply with a blocking period according to Section 18 (1) KSchG, even if the labor administration has mistakenly assumed that the collective redundancies applied for are not notifiable. If the labor administration has assumed that the intended dismissals are not subject to notification and has given the employer a corresponding negative clearance, this has the same effect as consent to early dismissal without the blocking period having to be observed. An incorrectly issued negative clearance therefore has the same effect as one issued on a correct legal basis .

literature

Individual evidence

  1. ^ Beck'scher online commentary: Dismissal Protection Act. Section 17 No. 1.
  2. ^ Beck'scher online commentary: Dismissal Protection Act. Section 17, paragraph 51.
  3. ↑ BAG, judgment of May 28, 2009 - 8 AZR 273/08, NZA 2009, 1267.
  4. ↑ BAG, judgment of April 13, 2000 - 2 AZR 215/99, AP KSchG 1969 § 17 No. 13; BAG, judgment of September 18, 2003 - 2 AZR 79/02, NZA 2004, 375; BAG, judgment of June 16, 2005 - 6 AZR 451/04, AP KSchG 1969 § 17 No. 21.
  5. ↑ ECJ, judgment of January 27, 2005 - C-188/03, NZA 2005, 213.
  6. ↑ Ernst-Dieter Berscheid: Arbeitsrecht-Blattei systematic representations (AR-Blattei SD), 1020.2, marginal no. 208; Gerrick von Hoyningen-Huene, Rüdiger Linck: Dismissal Protection Act , Rn. 84; Dieter Marschall: New regulation of the notification requirement for "mass layoffs". DB 1978,981 (982); Wilhelm Moll, in: Martin Henssler, Wilhelm Moll, Klaus Bepler (ed.): The collective agreement. P. 166; Peter Pulte: Change of protection against dismissal in the case of mass layoffs. BB 1978: 1268 (1269); Horst Weigand, in: KR - Community commentary on the Dismissal Protection Act and other regulations on protection against dismissal , Rn. 83
  7. ↑ BAG, judgment of June 8, 1989 - 2 AZR 624/88, AP KSchG 1969 § 17 No. 6; LAG Düsseldorf, judgment of September 15, 2010 - 12 Sa 627/10; LAG Düsseldorf, judgment of 10 November 2010 - 12 Sa 1321/10, ZIP 2011, 490; Barbara Reinhard: Legal consequences of incorrect mass layoffs. RdA 2007, 207 ff.
  8. ↑ Peter Böck, in: Kasseler Handbuch zum Arbeitsrecht. 6.3 No. 962; Friedrich Hauck, in: Heidelberg Commentary on the Dismissal Protection Act. No. 54; Gerrick von Hoyningen-Huene, Rüdiger Linck: Dismissal Protection Act , para. 87; Michael Kittner, Bertram Zwanziger, Wolfgang Däubler, Olaf Deinert: KSchR - Protection against dismissal , marginal no. 55; Ralf Steffan: Mass dismissals , in: Manfred Weiss, Alexander Gagel (ed.): Handbook on labor and social law , § 19 K, marginal no. 134; Horst Weigand, in: KR - Community commentary on the Dismissal Protection Act and other regulations on protection against dismissal , Rn. 85.
  9. ↑ Gregor Thüsing / Helga Laux / Mark Lembke (eds.), Dismissal Protection Act , 2011, p. 797
  10. ^ BAG, judgment of April 13, 2000, Az .: 2 AZR 215/99 = MDR 2000, 607