Reinstatement

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The reinstatement is a legal concept of labor law .

Legal basis

The right to re-employment is not regulated by law. Rather, it exists on the basis of judicial law (of the Federal Labor Court ). If an employee has been terminated, he can be entitled to re-employment if this appears necessary in exceptional cases for reasons of good faith or other reasons ( idea of ​​rehabilitation ). The employee may invoke his or her original rights.

Casuistry

The assertion of the reinstatement claim plays a role in the following cases:

  • On the one hand, there may be a right to reinstatement during the current notice period (and in spite of a possibly agreed termination agreement). The prognosis for the reason for the termination must have turned out to be incorrect.
  • According to the case law of the Federal Labor Court, the employee may also be entitled to a claim for re- employment after an operational dismissal if there is an unforeseen possibility of continued employment between the decision of the dismissal and the expiry of the notice period. However, if this does not arise until after the period of notice has expired, a claim for re-employment is only possible in exceptional cases. The employer's legitimate interests may conflict with the right to re-employment. This can also consist in the fact that the employer has already filled the job in question. The employer cannot invoke the replacement of the job if this frustrates the right to reinstatement in a bad faith.

literature

  • Ursula Lina Steinacker: The employee's right to reinstatement. The adequate solution to the conflict between legal security and material justice . In: Labor and Social Law . 1st edition. No. 147 . Nomos, Baden-Baden 2017, ISBN 978-3-8487-2044-6 (additional dissertation, University of Bremen, 2012).

See also

Individual evidence

  1. a b BAG, judgment of December 4, 1997 , Az. 2 AZR 140/97, full text = BAGE 87, 221, 230.
  2. BAG, judgment of June 28, 2000 , Az. 7 AZR 904/98, full text = BAGE 95, 171.
  3. ^ BAG, judgment of November 9, 2006 , Az. 2 AZR 509/05, full text.
  4. ^ BAG, judgment of December 14, 1956 , Az. 1 AZR 29/55, guiding principle = BAGE 3, 332
  5. BAG, judgment of August 20, 1997 Az. 2 AZR 620/96, full text.