Non-cancellability

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Tenure (in Austria: Pragmatisierung ) is in labor before, if the employer an ordinary termination of the employment relationship is excluded.

General

Working conditions are like rent , lease or lease continuing obligations , the indefinite be closed and therefore only by termination can be completed. Most employment relationships are subject to the possibility of mutual termination by employers or employees . This also generally applicable to all employment relationships is provision of § 620 para. 2 BGB in permanent employment from. The non-terminability is therefore to be regarded as an exception, which is also only limited to very specific employment relationships. As recently as December 1954, the Federal Labor Court (BAG) assumed that even “constant operational practice ” could also justify the employee being properly non-terminable.

The ordinary non-terminability of an employment relationship is a form of employee loyalty and in fact acts like a job or employment guarantee. The fact that it cannot be terminated can be a very powerful incentive for employees , the effect of which is even greater than the incentive for possible wage increases through promotion .

The situation of civil servants who have been employed as civil servants for life and who can only be dismissed in the event of serious misconduct is comparable to the fact that an employee cannot be dismissed. Pension entitlements may also be lost in the process. The civil servant's lifetime position includes the possibility of transfer to another office and temporary or permanent retirement for a reduced salary .

The non-terminability and the provision for life ( alimentation ) should protect against arbitrary dismissal .

history

The lifetime position of civil servants goes back historically to the legal position of the judge in England to ensure the independence of the judiciary ("irremovability of the judge") according to the division of powers . Only in the Länder of the German Confederation was this principle applied to the civil service as a whole at the beginning of the 19th century. The civil service should be viewed as an award that motivates the wearer to be committed to the service. This was originally based on the alliance between the wealthy educated bourgeoisie and the reform monarchy against the nobility.

The civil service , which emerged from the prince service of the individual states , was the first professional group to introduce non-resignation. At the beginning of the 17th century, the servant committed himself to the feudal lord on the basis of private law . In absolutism the legal basis changed to public law and emphasized the independence of the civil service.

Under King Friedrich Wilhelm I , a special official ethic came into being for the first time. Loyalty (towards the monarch), hard work , incorruptibility , punctuality and thrift were already the important "Prussian" virtues back then. The General Prussian Land Law , which he initiated but was only enacted by Frederick II in February 1794, was the first comprehensive legal regulation of civil service law, which in Part II, Title 10, contained the chapter "On the rights and duties of the servants of the state". For the first time, civil service was provided as a life occupation.

In Bavaria , the "main state pragmatics" introduced civil service law in January 1805 and for the first time transformed the employment relationship into an employment relationship under public law, which from May 1808 provided for inamovibility (irreversibility of civil servants and judges). The Baden servants' edict of January 1819 attributed the civil servants to non-dismissal, and Saxony also guaranteed its civil servants to non-dismissal in March 1835. With the civil supply certificate, professional soldiers of the Prussian gendarmerie in the lower ranks could apply to the state Prussian administration at the end of their military career since June 1871 - for example in school service or at post offices - and could thus continue to work in the public service. In November 1918, Friedrich Ebert threatened to replace the civil servants, which sparked a fear in the bureaucracy of losing the ability to terminate. The Weimar Constitution of August 1919 led to the first civil servants 'job for life, pension and survivors' benefits and the state liability for breach of official duty one.

In the United States , the permanent status has ( English life tenure status enforced) of the Federal Civil Service from 1890 to 1914. The professional civil service there is characterized by professional recruitment, promotion and career patterns and practical non-dismissability. The employees in the public administration ( English civil service ) receive an employment contract with no time limit, which, however, ends after the assigned tasks expire. The privileged status of the non-termination of university lecturers ( English tenure ) is intended to serve as a tenure track to preserve academic freedom . Appointed federal judges cannot be dismissed either. In Greece officials lost their jobs with the death or the abdication of the monarch.

On February 23, 1934, an ordinance of the Reich government abolished the non-terminability at the Reich, Land and municipal level; it was reintroduced by the Basic Law in May 1949 ( Article 33 (5) of the Basic Law; traditional principles of the professional civil service ). One of the most important life risks in the welfare state is that of unemployment , which the GDR countered with the right to work from April 1950 onwards with a de facto non-dismissability that covered all employment relationships. It only did not apply if someone was guilty of “violation of civic duties” or “socialist morality” . Otherwise, the GDR had no civil servants, only workers and employees in the public service.

Legal issues

There is no absolute non-termination in Germany, because the definition shows that ordinary or extraordinary termination is still possible for the employee and the employer still has the option of extraordinary termination in accordance with Section 626 BGB for an important reason . The "non-terminable" employee can therefore be terminated without notice for important reasons relating to their person or behavior. Even if the ordinary termination of an employee means that extraordinary termination without notice is not justified, there is still the possibility of extraordinary termination with an expiry period, which corresponds to an ordinary notice period. In the case of permanent non-termination, a notice period of 18 months is assumed; in the case of temporary non-termination - e.g. due to membership of the works council - the notice period that the employer would have to comply with without the special protection against dismissal should be decisive. In accordance with § 140 BGB, an inadmissible ordinary termination cannot be reinterpreted as an extraordinary, limited termination.

Factual non-cancellability

Such “relative” non-termination can result from the law , collective bargaining agreement , works agreement (e.g. social plan) or employment contract . A legal regulation can be found in Section 15 (3) Part-Time and Temporary Employment Act , according to which the ordinary termination of a fixed-term employment relationship is excluded for the employer and the employee, unless a termination option has been agreed. Civil servants can only be removed from their position under difficult conditions (dismissal, loss of civil servant rights, removal from civil servant status in accordance with the disciplinary laws or entry or transfer into retirement), but not through dismissal ( Section 21 Civil Service Status Act ).

Non-cancellability regulations are mainly found in the public service . Ordinary non-dismissibility is an essential element of protection against dismissal in the public service and begins with the completion of a certain age and reaching a certain seniority . According to Section 34 (2) TVöD, employment relationships of employees who have reached the age of 40 can only be terminated for an important reason after an employment period of more than 15 years by the same employer. Both requirements must be met at the same time. Previous periods of employment are to be taken into account when changing employers within the public service, but not in the case of ordinary non-termination. If someone changes employer within the public service, according to this judgment, the length of employment with the previous employer is not taken into account with regard to the non-dismissal. In the context of important reasons , according to the established case law of the BAG, due to collective bargaining provisions, extraordinary termination for good cause in the event of illness can be considered, namely in the case of long-term illnesses or frequent short illnesses.

In case of a "meaningless employment" ( Orlando-termination ), in which the worker receives on "indefinite duration" wages should continue to pay without being able to deal with it, is an extraordinary compulsory redundancy possible by the employer. This applies to cases where the employer free enterprise is awarded, thereby activities eliminated (about staff reductions through outsourcing ). However, the employer must have exhausted all possibilities beforehand in order to avoid a termination notice; If necessary, a job with poorer pay must also be offered or a job that will become vacant in the foreseeable future due to fluctuation . The employer can even be required to exhaust further employment with other public employers by means of a staffing contract.

Non-cancellability for personal reasons

The - temporary - non-terminability can result from a certain function and only applies as long as someone exercises this function. Personally excluded ( special protection against dismissal) is a dismissal from members of parliament ( Article 48, Paragraph 2 of the Basic Law), persons confidant of the severely disabled ( Section 179, Paragraph 3 of Book IX of the Social Code ), pollution control officers ( Section 58, Paragraph 2 of the Federal Immission Control Act ), data protection officers of public bodies ( Section 6 Paragraph 4 BDSG), trainees after the probationary period ( Section 22 Paragraph 2 BBiG), persons drafted into military service ( Section 2 ArbPlSchG), community service providers ( Section 78 Paragraph 1 No. 1 Civil Service Act) and members of the works council , youth and trainee representation ( Section 15 (1) KSchG), maternity protection and parenting ( Section 17 (1) MuSchG, Section 18 (1) BEEG) or during care leave ( Section 5 (1) PflegeZG).

Employee status

The non-dismissability under the collective agreement can cover every employee status, regardless of whether someone is a worker , employee , civil servant , judge or soldier . In the public service, with the entry into force of the TVöD and the collective agreement for the civil service of the federal states  (TV-L) in October 2005, the distinction between salaried employees and workers was abolished. Both groups are now uniformly referred to as employees . In a dismissal protection process, the employee must expressly refer to the fact that it cannot be terminated according to the collective agreement or the contract.

Economical meaning

It is argued that by not being able to terminate the public service, employees can ensure their independence from unjustified political interference and their impartiality . The employment guarantee, which is based on the fact that it can not be terminated, reduces the operational or administrative flexibility on the labor market and causes employers to pay personnel costs , which in recessions have a negative impact on profits as cost retention. Companies must have permanent staff available, which in extreme cases are unemployed and therefore cause idle costs . Such employment guarantees are priced into the wages, so that non-terminable employment contracts usually have a lower salary level than freely terminable ones. The higher the job risk, the higher the wages are normally. The alleged lower motivation or productivity of non-dismissable workers in connection with the underlying moral hazard is often discussed .

A major reason for the earlier high losses of the Deutsche Bundesbahn was the employment guarantee resulting from the fact that it could not be terminated, because around half of the railway employees had civil servant status in 1979, the other employees were also subject to the termination. This was representative of all former Parafisci and the entire public service. The state loyalty of state employees is rewarded with the equivalent of the fact that the employment relationship cannot be terminated. The lifetime employment guarantee is also directly related to the bankruptcy of public companies and public administration . The lifetime employment guarantee undoubtedly has an indefinite but high monetary value .

International

In Switzerland and Austria there have been serious changes in terms of the non-cancellability. With a few exceptions (such as the federal judge), Swiss federal civil servants have been public employees since March 2000 due to the Federal Personnel Act (BPG). Their employer has an ordinary right of termination for operational or economic reasons (Art. 10 BPG). In Austria, the fact that it cannot be terminated is called pragmatization , and the beneficiary workers are “definitely” (civil servants). Since September 2004, only certain professional groups have been “definitely” placed, such as judges, police officers, federal teachers or state officials.

The Netherlands , Sweden and Great Britain abolished the non-resignation of their professors . In Brazil , the Congress passed an administrative reform in February 1998, which for the first time introduced flexibility in terms of non-terminability and a cap for federal civil servants.

Individual evidence

  1. ^ BAG, judgment of December 16, 1954, Az .: 2 AZR 58/54
  2. ↑ OECD, Education at a Glance 2007: OECD Indicators , 2007, p. 431
  3. ↑ Bernd Wunder, History of Bureaucracy in Germany , Frankfurt 1986, p. 31ff.
  4. ↑ Jörg Bogumil / Werner Jann, Administration and Administrative Science in Germany , 2005, p. 87
  5. ↑ Maximilian Baßlsperger, Introduction to the new civil service law , 2009, p. 2
  6. ↑ Sabine Leppek / Fritjof Wagner, Beamtenrecht , 2011, p. 14
  7. ↑ Hans-Ulrich Wehler, German History of Society , Volume 4, 2003, p. 361
  8. ↑ Peter Lösche (Ed.), Country Report USA: History, Politics, Economy, Society, Culture , 2004, p. 240
  9. ↑ Klaus-Jörg Siegfried, Universalismus und Faschismus , 1974, p. 155
  10. ↑ Hans Günter Hockerts, The German Welfare State: Development and Endangerment Since 1945 , 2011, p. 270
  11. ↑ Norbert Penkaitis, Realities and Absurdities on Our Planet , 2008, p. 208
  12. ↑ Sascha Herms, The termination - Preparing and implementing legally secure , 2014, p. 181
  13. ^ BAG, judgment of June 27, 2002, Az .: 2 AZR 367/01
  14. ↑ Harald Schliemann / Reiner Ascheid, Das Arbeitsrecht im BGB: Commentary , 2002, § 620, Rn. 733
  15. ^ BAG, judgment of September 12, 1974, Az .: 2 AZR 535/73
  16. ↑ Waldemar Röhsler, The Civil Code, BGB - RGRK , Volume II, 1997, § 624 Rn. 22nd
  17. ↑ This regulation replaced the old regulation in Section 53 (3) of the Federal Employees' Collective Agreement (BAT)
  18. ↑ BAG, judgment of February 22, 2018, Az .: 6 AZR 137/17 = BAGE 162, 76
  19. ↑ BAG, judgment of January 12, 2006, Az .: 2 AZR 242/05
  20. ↑ BAG, judgment of November 22, 2012, Az .: 2 AZR 674/11
  21. ↑ BAG, judgment of November 26, 2009, Az .: 2 AZR 242/05
  22. ^ BAG, judgment of June 13, 2002, Az .: 2 AZR 391/01
  23. ^ BAG, judgment of September 17, 1998, Az .: 2 AZR 419/97
  24. ^ LAG Sachsen-Anhalt, judgment of September 21, 2010, Az. 8 Sa 136/10
  25. ↑ BAG, judgment of November 8, 2007, Az .: 2 AZR 314/06
  26. ↑ Carl W. Meyer, Problems of Management , 1959, p. 104
  27. ↑ Ulrich Deichert / Wolfgang Höppner / Joachim Steller (eds.), Traumjob or Nightmare , 2016, p. 146
  28. ↑ Karl Heinrich Oppenländer (ed.), Analysis of the structural development of the German economy: Structural reporting 1980 , 1981, p. 248
  29. ↑ Markus Brauch, What am I? (Civil servant) , brand eins Online 4/2004
  30. ↑ Gunter Quaisser, University design: Food for thought from university politics and university research , in: Festschrift for the 60th birthday of Gerd Köhler, 2004, p. 59
  31. ↑ Jörn Dosch / Jörg Faust , The economic dynamic of political rule , 2000, p. 59