Resignation
A Despite termination (also repetition termination ) is an employer-provided termination in the German labor law . It presupposes that a dismissal protection process has already been pending or decided between the employer and the employee because of an earlier dismissal by the employer, but in which the alleged reasons for dismissal were not sufficient to justify the dismissal. If the employer still gives another notice of dismissal for exactly the same reasons, one speaks of a defiance.
A resignation is ineffective. Nevertheless, the employee must also bring a dismissal protection action against the second dismissal in due time if he wants to prevent it from taking effect. In this second action, the court does not re-examine the reasons for the termination because they were already the subject of dispute in the earlier proceedings and are now "used up"; the judgment in the first trial is prejudicial . The prohibition of repeated termination in the event that the termination facts remain the same is based on the substantive legal force of court decisions as well as the legal nature of the termination as a formal declaration . A design right is used up after it has been exercised.
A distinction is to be made between defiant notice of termination where the employer "postpones" one or more terminations after terminating the employment relationship because a new reason for termination has arisen or because he fears that the first termination will fail in court for formal reasons. A second termination can occur, for example, because the employee has insulted the employer in the dismissal protection process or has committed fraudulent proceedings. Or the employer pushes a timely termination after a termination without notice. Or the first termination failed because the lack of power of representation was reprimanded. Here, too, there may be limits, for example if the employer bases a termination notice on the same circumstances in life after an unsuccessful change notice .
Individual evidence
- ^ BAG, judgment of August 26, 1993, Az. 2 AZR 159/93, full text .
- ↑ BAG, May 22, 2003 AP No. 71 to § 1 KSchG 1969; February 12, 2004 EzA § 1 KSchG Termination for operational reasons No. 129; November 8, 2007 EzA § 626 BGB 2002 No. 19.
- ^ BAG, judgment of November 26, 2009, Az. 2 AZR 272/08, full text .
- ^ Trier Labor Court, judgment of January 23, 2013, Az. 4 Ca 1255/12, full text .
