The most important things at a glance:
- The unfair dismissal lawsuit can be used to legally challenge a termination.
- It is important that the 3-week deadline from receipt of the termination is observed, otherwise the termination is considered valid.
- To be able to file a lawsuit against termination, the employee must fall within the scope of either general protection against dismissal or special protection against dismissal.
Note: The term „employee“ below includes all genders (m/f/d) and is used for improved readability..
What is it about?
We spend a large part of our lives at our workplace. It not only secures our livelihood but is also a place for networking, making social connections, and is the foundation for personal development. However, things don't always go harmoniously: disputes with colleagues or supervisors, misunderstandings, communication problems, one's own misconduct, or impending restructuring due to economic interests all carry the risk of termination.
Faced with termination, an employee may initially feel like the ground is being pulled out from under their feet, raising the legitimate question of whether and, if so, how the employee can respond to a termination.
As a defense against such (unjustified) termination, the law provides the employee with a means of defense through a lawsuit for protection against dismissal. By means of this, they have the opportunity to have the legal validity of the termination reviewed by a court.
Who can claim protection under the dismissal protection act?
Whether you are entitled to the legal remedy of a wrongful termination lawsuit depends on whether the personal and objective scope of application are relevant.
Personal scope
You must have been continuously employed by the firm or company for more than 6 months.
Scope of application
The employer's business must have more than 10 employees in total. It is important that this only applies to employees whose employment began after December 31, 2003. If you started working before this cut-off date, a number of more than 5 employees is sufficient.
However, care must be taken in the calculation to record part-time employees who regularly work no more than 20 hours per week with the value of 0.5. For a working time of no more than 30 hours, the value of 0.75 is used.
Example for illustration
In a company, a total of 15 employees are active. 4 of them do not work more than 30 hours. The remaining 11 do not work more than 20 hours.
Calculation: 4 * 0.75 + 11 * 0.5 = 8.5
Therefore, after the calculation, a total of 8.5 employees are considered employed. This means the requirement that at least 10 employees are employed is not met. In this case, the substantive scope would therefore not be applicable.
Before filing a lawsuit
It is generally advisable to take legal action against a termination with a protection against dismissal lawsuit if you do not agree with it. This also applies if the termination suffers from formal defects at first glance. This is the case, for example, if it is signed by a person not authorized to terminate.
If this power of representation is lacking, a rejection due to lack of authority pursuant to Section 174 of the German Civil Code (BGB) may be considered in addition to an action for protection against dismissal. However, haste is required here, as a rejection must be made „without culpable delay“ (Section 174 (1) BGB). The courts assume a prompt duty to react here (depending on the specific circumstances, this can be a matter of a few days).
Legal representation required?
The law does not provide for mandatory legal representation in labor courts, at least not in the first instance (labor courts) (§ 11 Labor Court Act). In the second instance (regional labor courts), legal representation is mandatory. Consequently, employees are not prevented from presenting their case independently in the first instance. At the labor courts, there are legal aid offices that assist in drafting complaints. However, it is of course advisable in most cases to engage an employment lawyer who is familiar with the specifics of employment law and procedural matters.
Timeliness of receipt of the dismissal protection lawsuit
Especially important is, on time to challenge the termination notice. Pursuant to Section 4 of the German Protection Against Dismissal Act (KSchG), the termination is only valid within 3 weeks from receipt of the written notice of termination can be attacked.
If this deadline is missed, the termination becomes effective (§ 7 Protection Against Dismissal Act). This applies even if the termination would not have withstood judicial review in terms of its content or suffers from formal defects!
In practice, it is not uncommon for employers to issue multiple dismissals. Each dismissal must generally be challenged within the 3-week period. Unadvised employees who represent themselves may overlook this under certain circumstances. In practice, for security, the so-called Application for a determination This aims to establish that the employment relationship continues to exist, unterminated, at the time of the last oral hearing. This has the advantage that the employee can defend against any termination cause that the employer invokes during the proceedings.
Ineffectiveness of a termination
Below is a summary of reasons why a termination directed to you may be invalid.
Sufficient grounds for termination
Ordinary and extraordinary termination must be distinguished here.
In the case of an ordinary termination, it is linked to personal, conduct-related, or operational reasons.
Termination for personal reasons
As the term suggests, in a Termination for personal reasons attached to the person of the employee. This includes, in particular, a Illness-related termination. However, for the effectiveness of such a termination cumulative(=side by side) several prerequisites must be met.
These consist of a Negative forecast for the future, one significant disruption of business interests, no milder means, that comes into consideration and a Balancing of interests, which results in the employer's interest in termination being weighted more heavily than the employee's interest in the continuation of the employment relationship.
NoteMore information on dismissal for personal reasons can be found here: Article on termination for personal reasons. More information on termination due to illness can be found here: Article on termination due to illness.
Termination for cause
When a conduct-related termination is issued, the employee is accused of violating a contractual obligation that results from controllable behavior.
Such a termination is only socially justified if the following conditions are met:
It must be a material breach of employment contract duties present, where the employee acted culpably and due to the breach of duty, it leads to a concrete impairment of the employment relationship.
Since termination should only be considered as a last resort, the employer must first milder means apply to bring about a correction of the employee's behavior.
Hereby Warning to mention. This must, in turn, clearly and precisely state what exactly the employee is accused of. Furthermore, it must urge the employee to change their behavior in the future. Then, the legal consequences of non-compliance must be made clear to them. The warning must contain an informational and warning function. Finally, a comprehensive balancing of interests takes place.
NoteMore information on termination for conduct can be found here: Article on termination for cause.
Redundancy dismissal
An operational termination is only possible if three conditions are cumulatively met.
It must first Operational requirements for termination one or more Jobs lead.
Finally, the employer must properly Social selection carry out. This means comparing with other colleagues who perform comparable work (age, length of service, maintenance obligations, severe disability). In case of doubt, they must dismiss the least deserving and most vulnerable employee.
Finally, it must be examined whether a vacant position is available, which, however, may also have lower requirements and be compensated accordingly lower. If this is the case, a termination notice would not be possible, but a notice of amendment would have to be issued.
NoteMore information on dismissals for operational reasons can be found here: Article on Redundancy Dismissal.
Hearing of the works council
Before termination, the works council must be duly consulted (Section 102 of the Works Constitution Act). If the consultation is not conducted properly, the termination is invalid. If the works council is consulted and objects to the termination, the employer can still issue the termination. Therefore, the ultimate goal of the consultation is to ensure that the employer reconsiders their decision if necessary.
Form and Deadline
Termination via WhatsApp, SMS, or email is not permissible, even though this practice is common. Nevertheless, it is advisable to file a lawsuit. If such a termination occurs, the employee can invoke Section 623 of the German Civil Code (BGB), which expressly requires written form for a termination. This means that employers must sign the termination by hand. The calculation of notice periods is regulated in Section 622 of the German Civil Code (BGB), unless otherwise agreed upon in the employment contract or collective bargaining agreement.
With extraordinary terminations, no notice period is typically given.
Special protection against dismissal
Special groups of people have enhanced requirements for termination. This includes, in particular, people on parental leave, severely disabled individuals, works council members, or pregnant women.
Costs of an action for protection against dismissal
Each party bears its own costs in the first instance, regardless of whether they win or lose the case (§ 12a of the Code of Labor Court Procedure). Legal protection insurance often covers these costs. However, you must be careful, as this generally only applies if the insurance was taken out at least 3 months before the termination was issued.
If someone doesn't have insurance coverage, they may potentially be granted legal aid if they are not financially able to bear the costs of the proceedings. However, this requires a comprehensive application for legal aid, including a detailed declaration of financial circumstances.
In this context, the advisory certificate should also be mentioned. People who are not financially able to bear attorneys' fees can apply for an advisory certificate at the competent local court to have the first consultation with an attorney.
Conclusion
As you can see, the wrongful termination lawsuit gives you a way to legally challenge the termination. Even though you can represent yourself in court, we strongly recommend that you hire an attorney. Certified Specialist in Labor Law to be instructed for your matter. This ensures that your concern is taken into account in the best possible way at every stage of the process. If you still have questions or doubts regarding your termination after reading this article, do not hesitate to contact us. We will be happy to take the time to advise you.
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