1. Time limit
The admissibility of fixed-term employment relationships is fundamentally regulated in the Part-Time and Fixed-Term Employment Act (TzBfG). This distinguishes between fixed-term contracts with an objective reason (Section 14 Para. 1 TzBfG) and fixed-term contracts without an objective reason (Section 14 Para. 2 and 3 TzBfG). According to § 14 para. 2 Sentence 2 TzBfG is the limitation of an employment contract without a factual reason in accordance with. § 14 Abs. 2 TzBfG not permitted if an employment relationship has already existed with the same employer. Following its case law on the previous regulation of Section 1 Para. 3 BeschFG in the version of the law of September 25, 1996, the Seventh Senate decided in its judgment of November 10, 2004 (- 7 AZR 101/04 -) that employers within the meaning of Section 14 Para. 2 TzBfG is the contract employer, i.e. the natural or legal person who concluded the employment contract with the employee. A previous employment contract with the same employer only existed in this sense if the employee’s previous contractual partner was the same natural or legal person as the current employer and both employers are identical. A merger does not mean that the transferring and acquiring legal entities are legally viewed as the same employer. The transferring legal entity expires in accordance with Section 20 Paragraph. 1 No. 2 UmwG with the registration of the merger. Although Section 20 Para. 1 No. 1 UmwG the universal legal succession of the acquiring legal entity into the legal position of the transferred legal entity. However, this does not mean that the legal restriction, according to which the transferring legal entity cannot again legally conclude a fixed-term employment contract with a previously employed employee, is transferred to the acquiring legal entity. The according to § 14 para. 2 Sentence 2 TzBfG, the personal identity on the employer’s side is also valid in the event of a transfer of operations in accordance with Section 324 UmwG in the version valid until March 31, 2002 in conjunction with Section 613 a Para. 1 BGB does not apply if the employment relationship had already ended before a business transfer took place in the course of the merger and was therefore not transferred by law from the transferring legal entity to the acquiring legal entity.
According to 623 BGB in the version valid until December 31, 2000 (since January 1, 2001: Section 14 Paragraph 4 TzBfG), the effectiveness of the fixed-term employment contract must be in writing. According to a decision of the Seventh Senate of December 1, 2004 (- 7 AZR 198/04 -), this is not guaranteed if the parties only verbally agree on a fixed-term employment contract and they put this contract, including the fixed-term agreement, in writing after starting work. The time limit that was only agreed orally is void due to the lack of written form in accordance with Section 125 Sentence 1 of the German Civil Code (BGB). This does not result in the entire employment contract being ineffective. Instead of a fixed-term employment relationship, a permanent employment relationship is created. The written recording of the verbally agreed fixed term after the start of the contract and after the start of work does not result in the fixed term becoming retroactively effective. Such a legal consequence does not arise from Section 141 Paragraph. 2 BGB. Such a legal consequence does not arise from Section 141 Paragraph.
Your requirements are not met. The employment contract concluded orally is – apart from the fixed term – effective from the start and forms the legal basis for the resulting rights and obligations of the parties. A corresponding application of Section 141 Para. 2 BGB is ruled out. If the parties record a previously orally agreed fixed-term agreement in writing in an employment contract signed after the start of the contract, this generally does not constitute a subsequent fixed-term contract for the employment relationship that was initially created. The parties generally only want to record in writing what was previously agreed orally, but do not want to change the contract.
In its judgment of July 27, 2005 (- 7 AZR 443/04 -), the Seventh Senate confirmed that an age limit agreed upon in individual contracts, which provides for the termination of the employment relationship when the standard retirement age for social insurance purposes is reached, is permissible. The limitation of the employment relationship contained herein is objectively justified if the employee can acquire a statutory old-age pension as a result of the employment. The effectiveness of the fixed-term contract does not depend on the employee’s specific economic security when he or she reaches the age limit. The constitutional prohibition of underfunding does not require a pension provision that is based on the employee’s individual standard of living and his or her subjective needs. Which arises from Art. 12 Para. The obligation to protect arising from Article 1 of the Basic Law is already sufficient if the temporary employee can acquire a pension in the statutory pension insurance according to the content of the contract and the duration of the contract. This is the same if the employee has been exempted from the pension insurance obligation due to other old-age provision that is equivalent to the law (§ 6 SGB VI) and the age limit is at that point in time
of the statutory retirement age. In this case, the time limit is also effective regardless of which form of pension the employee has chosen. The Senate further decided that an age limit contained in general working conditions under the heading “Termination of the employment relationship” is not a surprising clause within the meaning of of § 305 c paragraph. 1 BGB represents.
2. Termination
a) Small business clause
Companies with generally five or fewer employees, excluding those employed for their vocational training, are governed by Section 23 Para. 1 Sentence 2 KSchG in the version valid before January 1, 2004 is excluded from the scope of the first section of the Dismissal Protection Act. There is no general protection against dismissal for employees in these companies.
According to the previous case law of the Second Senate, the employee bears the burden of demonstrating and proving that the operational requirements for the validity of the Dismissal Protection Act are met. The employee must explain in detail and, if necessary, prove that they work in a company that generally employs more than five employees, excluding those employed for their vocational training. In its judgment of February 24, 2005 (- 2 AZR 373/03 -) the Second Senate left it open whether this distribution of the burden of presentation and proof should be maintained. Since the importance of fundamental rights, in this case Article 12 of the Basic Law, is reflected in the procedural distribution of the burden of presentation and proof, unreasonably strict requirements should not be placed on the employee’s burden of presentation.
Accordingly, the employee usually meets his burden of proof if he conclusively presents the facts that support a corresponding number of employees and the external circumstances known to him. The employer must then comply with Section 138 Para. 2 ZPO explain in detail which legally relevant circumstances speak against the employee’s substantiated statements.
b) Ordinary termination notice within the framework of the Dismissal Protection Act
According to the case law of the Second Senate, an ordinary dismissal can be socially justified for reasons relating to the employee (Section 1 Paragraph 1
KSchG) if there is a ban on employment for the employee. In its judgment of February 24, 2005 (- 2 AZR 211/04 -), the Second Senate decided that the same applies if the employment of the contractually agreed activity itself does not violate a legal prohibition, but the employer does for reasons for which he is not responsible and which lie within the sphere of the employee, cannot fulfill legal obligations associated with the employment. In this case, too, there is an obstacle to employment. The Second Senate therefore considered the dismissal of an employee whom the employer had hired to deliver Sunday newspapers to be effective because she also delivered newspapers from Monday to Saturday for another employer. If employees are exceptionally employed on Sundays to deliver press products, they must, in accordance with Section 11 Para. 3 ArbZG have a replacement day of rest, which must be granted within the next two weeks. This was not possible because the employee worked in the other employment relationship on all other days of the week. The requirement to grant a replacement day of rest must be fulfilled objectively. It is not enough that the “Sunday employer” does not request any work on a weekday. In fact, no work at all may be carried out as part of an employment relationship on the substitute rest day. The employee cannot waive the alternative day of rest.
According to the established case law of the Second Senate, a business decision by the employer caused by economic or technical developments can constitute an urgent operational requirement in the sense of: of Section 1 Para. 2 KSchG if it has a specific impact on the employment of the terminated employee. The organizational decision must be the cause of the loss of employment needs claimed by the employer. Once such a business decision has been made, it is not to be examined as to its objective justification or expediency, but only as to whether it is obviously unobjective, unreasonable or arbitrary. With its judgment of September 22, 2005 (- 2 AZR 208/05 -), the Second Senate accepted a business decision that led to the simultaneous issuing of notices of termination and changes. The overall concept consists of two changes implemented at the same time compared to the previous organization. On the one hand, the fulfillment of previous employment needs was reorganized by changing the distribution of the tasks involved among the workplaces. Instead of assigning the activities to special workplaces according to their type, as was previously the case, the new structure provides for the responsibility of all employees for all work that arises (all-round workplaces). On the other hand, the employer – in a second step that was implemented at the same time as the first one – reduced the work capacity made available for operational tasks and provided that the previous activities will only be carried out in the future to the extent to which the the staff capacity specified by it makes this possible. Such an overall concept is fundamentally unobjectionable as a business decision. The employer can neither be accused of having to distribute the remaining work among all employees and therefore issue notices of termination to all employees, nor does the law require that it reorganizes in such a way that it first identifies the employees most worthy of protection according to the principles of social selection and then Reorganization then adapts to the remaining workforce potential from a social perspective. Rather – just the other way around – the operational need forms the basis for the possibility of continued employment and this in turn forms the basis for the social selection to be made. The employer does not have to carry out the reorganization measure in temporal stages in such a way that it first announces changes in dismissal, waits to see how the employees affected react, and offers the rejected jobs to the employees who were intended for termination according to the original concept, and then only then to issue necessary termination notices.
According to the established case law of the Federal Labor Court, when assessing the social justification of a dismissal, the time of receipt of the dismissal is important. In its judgment of April 21, 2005 (- 2 AZR 241/04 -) the Second Senate decided that these principles also apply to the question of whether termination according to Section 1 Para. 3 Sentence 1 KSchG is socially unjustified. The group of employees to be included in the social selection must be formed based on the circumstances at the time of the intended termination. Employees for whom ordinary dismissal is excluded at this time due to special dismissal protection regulations are not included in this group of people. This also applies if, from the point of view at the time of the intended termination, the special protection against dismissal is likely to expire soon and, due to the short notice period, the employment relationship of the specially protected employee could be terminated on the same date on which the employment relationship of the competing, socially weaker employee was terminated can be. The employer is not obliged to wait until the special protection against dismissal has expired before giving notice. There is no support in the law for such an obligation. In addition, it is not possible to judge with certainty at this earlier point in time whether the later termination would be effective. It is therefore imponderable as to how the comparable group of people would be determined at this time.
According to the concept of Section 1 Para. 3 KSchG, social selection is company-related. All comparable employees who are employed in the same company as the employee who is directly threatened with dismissal must therefore generally be included in the decision. The Second Senate confirmed this strict company-related nature of social selection in its judgment of June 2, 2005 (- 2 AZR 158/04 -) and decided that even with a corresponding expansion of the employer’s right to direct, social selection should in principle not be carried out in a company-related manner. The wording, meaning and purpose and overall context of Section 1 KSchG clearly speak for the company-related nature of the social selection. If there is an urgent operational need in one of the companies of a company, this can generally only be socially justified by dismissal of employees in that company. In relation to the other company, there is no urgent need to freely terminate jobs in another company within the company by means of social selection for the employees who are due to be terminated. This also applies if a company-wide transfer right is agreed in employment contracts. A cross-company social selection would also lead to problems with the involvement of the works council that would be difficult to solve. As part of the social selection according to Section 1 Para. 3 Sentence 1 KSchG, the employer must take sufficient account of the four social selection criteria – length of service, age, maintenance obligations and severe disability. In its judgment of June 2, 2005 (- 2 AZR 480/04 -) the Second Senate decided that previous periods of employment with the same employer or another company cannot be taken into account for the length of service in accordance with Section 1 Para. 3 sentence 1 KSchG can be taken into account through a contractual agreement between the employment contract parties. Although the regulations about the social
al selection is not dispositive. § 1 para. However, Section 3 KSchG does not prevent indirect deterioration in an employee’s position under termination law that arises from a permissible arrangement of working conditions with another employee. However, the individual agreement that affects other employees must not be abusive and must not only be intended to circumvent social selection. There must be an objective reason for the contractually agreed length of service to be taken into account. This can be accepted without further ado if the user
consideration of previous periods of employment is based on a labor court settlement due to a disputed transfer of business. The Second Senate further confirmed that none of the social aspects mentioned have priority over the others, including length of service.
c) Ordinary termination notices by the (provisional) insolvency administrator
According to Section 113 Sentence 2 InsO, an employee’s employment relationship can be terminated by the insolvency administrator with a notice period of three months to the end of the month, unless a shorter period is applicable. In its judgment of January 20, 2005 (- 2 AZR 134/04 -) the Second Senate decided that only the insolvency administrator can claim this shortened notice period after the opening of insolvency proceedings. According to the clear wording of the standard and the system of the insolvency code, the specific notice period regulation applies to the so-called strong provisional insolvency administrator with administrative and dispositional authority in accordance with Section 22 Para. 1 InsO no immediate application. The regulation of Section 113 InsO does not apply accordingly to the termination of the strong provisional insolvency administrator, because the requirements for an analogy do not exist. The insolvency regulations do not contain any unplanned loopholes. The strong provisional insolvency administrator and the final insolvency administrator have different functions and have not been fully equated by the legislature. According to a decision of the Sixth Senate of September 22, 2005 (- 6 AZR 526/04 -), § 113 InsO suppresses non-cancellability clauses in company agreements. Also Section 323 Para. 1 UmwG, according to which, in the event of a company split, the termination status of the affected employees does not deteriorate due to the split for a period of two years from the time it takes effect, does not conflict with this. If the operations of the spun-off company are shut down due to insolvency, despite Section 323 Para. 1 UmwG can be effectively terminated. The Senate further decided that with regard to social selection, which is in accordance with. § 125 Abs. 1 Sentence 1 No. 2 InsO should only be checked for gross errors and should not be based on the circumstances before the demerger took effect. Employees in the remaining companies will not be affected by an entrepreneurial decision made in the spun-off company if there is no longer a joint operation at the time of termination. There is then no need for cross-company social selection.
The Sixth Senate was concerned with the operational dismissal of an employee in partial retirement by the insolvency administrator. According to its decision of June 16, 2005 (- 6 AZR 476/04 -), the closure of the company represents an urgent operational requirement in the sense of from § 1 para. 2 KSchG, which requires the termination of an employee employed there even if he or she is in the working phase of partial retirement according to the block model. Nothing different applies to termination by the insolvency administrator, even if there is only one month of work between the termination date and the release phase. A case-by-case balancing of interests can only work in the employee’s favor in rare, exceptional cases in the case of operational reasons for dismissal. This can be the case if the operational termination leads to disproportionate disadvantages for the employee, while the advantage for the terminating employer or for the insolvency estate appears to be small. This was missing in the case decided by the Sixth Senate. As an alternative to the old-age pension after partial retirement, the employee could also receive an old-age pension due to unemployment. Continuing the part-time retirement employment relationship, however, would have resulted in a not insignificant burden on the insolvency estate. A termination notice with the aim of eliminating the employee’s claims for the agreed top-up contributions in part-time retirement in order to relieve the burden on the masses is not a milder means than a termination notice. The insolvency administrator was able to terminate the employment relationship within the deadline set by Section 113 InsO. The part-time retirement employment relationship is a fixed-term employment relationship that the insolvency administrator in accordance with. § 113 InsO can terminate the contract, even if the possibility of termination is neither provided for in the contract nor in the collective agreement.
If the insolvency administrator terminates an employee because of the intended closure of the company, then, according to a decision of the Eighth Senate of September 29, 2005 (- 8 AZR 647/04 -), it speaks against a final intention to close down if the insolvency administrator has received a takeover offer from an interested party before the termination is declared, which leads to concrete negotiations and a partial takeover of the business a few days later. This applies in any case if a renegotiation was agreed upon in the previous reconciliation of interests if the business was transferred to a third interested party.
In its judgment of July 21, 2005 (- 6 AZR 592/04 -) the Sixth Senate decided that there was gross error in social selection within the meaning of Section 125 Para. 1 Sentence 1 No. 2 InsO occurs when an employee is terminated who is 30 years older and has 20 years longer with the company than an employee who is obliged to support a minor child. This social selection is grossly flawed because it has an obvious error and lacks any balance in the weighting of the selection criteria. The Senate further decided that in insolvency proceedings with little assets, an insolvency administrator who has agreed a suspensive balance of interests with the works council can regularly settle new assets in accordance with. § 209 Abs. 2 No. 2 InsO is justified if he waits until the condition occurs before giving notice of termination. The Senate was able to leave open whether a reconciliation of interests was fundamentally contrary to the conditions. If the other requirements for effectiveness (e.g. written form) are met, the reconciliation of interests is considered at least “attempted” in the sense. § 113 Abs. 3 BetrVG, even if it is ineffective due to the condition. The insolvency administrator therefore has no consideration
on the condition of using the first termination option after notification of the insufficiency of the assets if he wants to avoid the creation of new assets liabilities.
d) Extraordinary termination
With its judgment of July 7, 2005 (- 2 AZR 581/04 -), the Second Senate decided for the first time on immediate termination due to private use of the Internet during working hours. A breach of the employment contractual obligation to perform as well as other contractual ancillary obligations can arise from various circumstances when using the internet privately: 1) through use contrary to an express prohibition by the employer; 2) by failing to perform the work required under the employment contract while “surfing” the Internet for private purposes; 3) by downloading significant amounts of data from the Internet onto company data systems (“unauthorized downloading”), especially if this poses the risk of possible violators.
re-infection or other malfunctions of the operating system or data is downloaded, the tracing of which could result in possible damage to the employer’s reputation, for example because it involves criminal or pornographic images; 4) due to the additional costs associated with private use. When using the Internet privately during working hours, the employee fundamentally violates his or her primary obligation to perform at work. A breach of duty becomes more serious the more the employee neglects his work obligations in terms of time and content when using the Internet privately. The employer does not have to have warned the employee in advance in all cases of private use of the Internet and related breaches of contractual obligations. If the employee uses
If he spends a significant amount of time at work using the Internet for private purposes, he cannot fundamentally trust that the employer will tolerate this. This applies even if the employer has not drawn up clear usage regulations for the company. If the employer does not expressly permit or tolerate this, private use of the Internet is generally not permitted. In such cases, if the non-performance of the contractually agreed work takes a considerable amount of time, the employee cannot seriously expect the employer to tolerate his behavior. In these cases, no warning is required.
e) Notice of changes
In the judgment of April 21, 2005 (- 2 AZR 132/04 -) the Second Senate dealt with the priority of notice of change over notice of termination. An ordinary termination notice is excluded according to the principle of proportionality if it is possible to continue to employ the employee in another vacant position, even under changed working conditions. Eine solche Weiterbeschäftigungsmöglichkeit hat der Arbeitgeber dem Arbeitnehmer anzubieten. The offer can only be omitted in extreme cases (e.g. offering a porter position to the previous HR manager). In principle, the employee has to decide for himself whether he considers continued employment under potentially significantly worse working conditions to be reasonable or not. The Senate makes it clear that the employer is not obliged to seek an amicable solution with the employee. He can combine the offer of change and termination by immediately, without prior negotiation with the employee
issues a notice of change. There are considerable concerns about giving the employee a period of just one week to consider a change offer without simultaneous termination, whereas in the case of a change termination the employee is generally given the much longer period of time set out in Section 2 Sentence 2 KSchG. The principle of proportionality does not necessarily require a prior period of consideration. The interests of the employee are sufficiently taken into account by Section 2 KSchG. If, before giving notice of termination, the employer made the employee an offer to adapt the contract to the possibility of continued employment and the employee rejects this offer, the employer is generally obliged to issue a change in termination anyway in accordance with the principle of proportionality. A termination notice is only permissible if the employee has clearly stated that he will not accept the changed working conditions in the event of a change in termination, not even subject to their social justification. For this purpose, the employer is responsible for the dismissal protection procedure.
burden of proof and proof. If the employee has made it clear that he will not accept the offer of change under any circumstances, his behavior is contradictory,
if he later refers to a possible change notice. The Senate questions whether the previous case law regarding the fictitious review of the employee’s willingness to continue working under the new working conditions should be adhered to if termination notice is given immediately.
f) Works council hearing
If the business is to be shut down based on the report prepared by the provisional insolvency administrator, it is sufficient for the works council to be properly heard in accordance with the provisions of the provisional insolvency administrator. from § 102 BetrVG if the hearing on the termination provided for after the opening of insolvency is already carried out by the managing director of the debtor and the provisional insolvency administrator, provided that the latter is also appointed as the final insolvency administrator. This was decided by the Sixth Senate in its judgment of September 22, 2005 (- 6 AZR 526/04 -).
g) Special protection against dismissal for works council members
Continuing its previous jurisprudence, the Second Senate decided in its judgment of March 17, 2005 (- 2 AZR 275/04 -) that the transfer of the works council’s right to consent to an intended extraordinary termination of a works council member in accordance with Section 103 BetrVG to a works committee in accordance with. § 27 Abs. 2 Sentence 2 BetrVG or a special committee in accordance with Section 28 BetrVG is generally permissible. The meaning of the right of consent under works constitution law according to Section 103 BetrVG does not conflict with this. The right of approval according to Section 103 BetrVG must be expressly transferred to the committee. For reasons of legal certainty, the written transfer decision must clearly state in which matters the works committee can make legally binding decisions instead of the works council. Furthermore, the works council must observe the general limits of legal abuse when transferring tasks. He may not divest himself of all essential powers by transferring most of his tasks to committees. As an overall body, it must remain responsible for a core area of legal authority. In order to determine this core area, the focus should not be on the materiality of the individual co-determination element, but rather on the entire area of responsibility of the works council. With the transfer of “all personnel measures relevant to co-determination in accordance with Sections 99-103 BetrVG” to the works committee, this core area is not yet affected. The Second Senate also decided that the special protection against dismissal for election candidates in accordance with Section 15 Para. 3 KSchG already exists if the election proposal has defects that can be remedied. The employer satisfies his obligation to notify in accordance with Section 102 BetrVG if he first initiates proceedings in accordance with Section 103 BetrVG and informs the works council accordingly, but at the time of termination it is clear beyond doubt that there is no protection under Section 103 BetrVG and therefore only a hearing in accordance with Section 102 BetrVG is required. In the opposite case, a hearing in accordance with Section 102 of the Works Constitution Act cannot, in principle, replace the initiation of the approval process, unless the works council has voluntarily given its consent in accordance with Section 103 of the Works Constitution Act, knowing that the requirement for special protection against dismissal is met.
h) Special protection against dismissal for severely disabled employees
The extraordinary termination of a severely disabled employee requires pursuant to §§ 91 Abs. 1, 85 SGB IX the approval of the Integration Office. According to the case law of the Second Senate, the employer can declare an extraordinary termination – even one with a necessary expiry period – if the approval decision has been made by the Integration Office in the sense of. of Section 91 Para. 3 SGB IX „getroffen“ ist und dieses die Entscheidung dem Arbeitgeber mündlich oder fernmündlich bekannt gegeben hat. Unlike a regular termination, there is no need for the written decision of the Integration Office to be delivered before the notice of termination is received. Section 91 SGB IX contains a special regulation that deviates from Section 88 SGB IX. In its judgment of May 12, 2005 (- 2 AZR 159/04 -), the Second Senate decided that the integration office’s approval decision does not have to be in writing at the time of its oral communication to the employer. It is enough that she had actually been hit. Neither Section 85 SGB IX nor Section 91 SGB IX contain any regulation regarding the form of the declaration of consent. Nor can it be deduced from the factual context of the legal regulation in Sections 85 ff. SGB IX that a written decision must already be available when a positive approval decision is announced by the Integration Office. The meaning and purpose of Sections 85 ff. SGB IX do not require this. Section 91 paragraph speaks against such a requirement. 3 and para. 5 SGB IX, which protect the employer’s interest in accelerating.
The extraordinary termination of a severely disabled employee can still take place after the termination notice period in Section 626 Paragraph has expired. 2 Sentence 1 BGB if it is declared immediately after the approval of the Integration Office has been granted (Section 91 Para. 5 SGB IX). As stated, the employer can declare the extraordinary termination as soon as the decision of the Integration Office in accordance with of § 91 SGB IX, which is already the case if the integration office has announced the decision to the employer orally or by telephone. Then he has certain knowledge that the decision has been made in his favor. He no longer needs to wait before giving notice and is not allowed to do so because otherwise he would not give notice immediately. If consent is only granted through the objection decision, the same principles apply according to a decision of the Second Senate of April 21, 2005 (- 2 AZR 255/04 -). Although Section 91 Para. 5 SGB IX only requires immediate approval from the Integration Office. However, the extensive coincidence of interests and procedural constellation justifies the application of the provisions in Section 91 Paragraph. 5 SGB IX expresses the legal idea. The employer
can – and must – terminate immediately, even if the objection committee gives its consent to the extraordinary termination, if it has certain knowledge that the objection committee gives its consent. The employer did not declare the extraordinary termination until immediately after delivery of the notice of objection. Nevertheless, he cannot be accused of guilt in the sense of of § 121 BGB. At the time when he had to decide whether he could give notice of termination after verbally announcing his consent, the legal question now decided by the Second Senate was unresolved. He was allowed and did base his legally relevant behavior on a comprehensible legal opinion. This does not constitute an accusation of guilt in the sense of. of § 121 BGB.
According to § 623 BGB, the termination of an employment relationship by notice must be in writing to be effective. The written form required by law is in accordance with Section 126 Para. 1 BGB is fulfilled by the fact that the document is signed by the issuer himself with his name signature or with a notarized hand sign. With its judgment of April 21, 2005 (- 2 AZR 162/04 -), the Second Senate decided on the written form of Section 623 of the German Civil Code (BGB) in the event of a termination declared by a civil law company (GbR) as an employer. In order to comply with the written form, it is necessary that all declarants sign the written declaration. If a representative signs on behalf of a contracting party, this must be sufficiently clearly expressed in the document by an addition indicating the representative relationship. In the case of a GbR, maintaining the legal written form requires that the document shows that the signature of the acting partners should also cover the declaration of a non-signing partner, i.e. it was also made in his name. It is not enough if all partners are listed in the letter of termination both on the letterhead and typed in the signature line, but only some of the partners sign the termination letter by hand without any additional representation. Such a notice of termination does not contain a sufficiently clear indication that it is not just a draft of a letter of termination that has inadvertently not yet been signed by the other shareholders of the GbR.
j) Unfaithful obstruction of access
Following its previous case law, the Second Senate decided in its judgment of September 22, 2005 (- 2 AZR 366/04 -) that the recipient of a declaration of intent cannot, in good faith, rely on the late receipt of this declaration if he is responsible for the delay in access. He must then allow himself to be treated as if the declarant had met the relevant deadlines. Anyone who expects to receive legally relevant declarations due to existing contractual relationships must take appropriate precautions to ensure that such declarations reach them. Even in the case of serious breaches of due diligence, the addressee can only be treated in good faith as if the declaration of intent had reached him if the person making the declaration did everything necessary and reasonable for him to ensure that his declaration could reach the addressee. If an employee has to expect the receipt of a notice of termination, he is in breach of his duty of care considerably if, when sending a certificate of incapacity for work, he informs the employer, who does not know the employee’s current address, of an address at which he actually does not have the address is reachable. If an employee is to be treated in good faith as if the notice of termination had been received within the first six months of the employment relationship, the notice of termination must be given in accordance with Section 90 Para. 1 sentence 1 SGB IX does not require the consent of the Integration Office.
3. Voluntary severance pay and equal treatment
The Ninth Senate was concerned with the question of whether an employee was entitled to severance pay on the basis of a voluntary benefit plan drawn up unilaterally by the employer for employees affected by operational dismissals. In its judgment of February 15, 2005 (- 9 AZR 116/04 -) the Ninth Senate decided that in such a case the employer is bound to the principle of equal treatment under labor law. This is not violated if it excludes employees from the severance payment who take legal action against the termination. The employer’s interest in planning security and avoiding the material and personnel costs associated with a legal dispute is an objective reason for treating employees differently. The employer may use the payment of severance pay as a means of control in order to carry out the operational change without disruption. This different treatment does not violate the prohibition of disciplinary measures in Section 612a of the German Civil Code (BGB). The legal aim of this provision requires a restrictive interpretation. The protective aim of the ban on retaliation is not to deprive the parties to the employment contract of the recognized permissible options for shaping working and departure conditions.
Section 612 a of the German Civil Code (BGB) permits so-called settlement agreements, according to which the employee leaves the employment relationship in return for payment of severance pay and waives his right to sue. Nothing different applies to unilaterally established severance payment conditions that are made known to the employee before or after termination. This is also the assumption of the legislature, which created a legal entitlement to severance pay in Section 1a of the KSchG with the Labor Market Reform Act on January 1, 2004, which also provides for a link between severance pay and acceptance of termination. In the decision – the employee was employed as a technician at the United States Embassy – the Ninth Senate further decided that a foreign state does not enjoy sovereign immunity in legal disputes that concern its non-sovereign actions. Maintenance and repair of technical equipment
to control access to an embassy do not concern sovereign action.
4. Collective dismissal compensation
In its judgment of February 23, 2005 (- 4 AZR 139/04 -), the Fourth Senate ruled on a claim for compensation for dismissal in accordance with Section 8 in conjunction with Section 3 of the collective agreement to avert social hardship in rationalization measures for commercial employees in the printing industry of January 6 July 1984 (Ratio-TV). According to these regulations, the right to compensation presupposes that there is a change in working techniques and that this can be justified by technical development and – in the sense of a second independent requirement – by rationalization. The dismissal of the employee must be a consequence of these measures. According to the decision of the Fourth Senate, the entitlement to dismissal compensation in accordance with Section 8 in conjunction with Section 3 Ratio-TV exists even if the dismissal is based on the employee’s qualifications not being able to fill the jobs created by the rationalization measures. This results in the interpretation of the collective agreement. An employer cannot rely on the fact that the workplace
The employee’s desire is based on the fact that he has not adapted his qualifications to technical developments. § 8 Abs. 3 Sentence 3 Ratio-TV stipulates that the entitlement to dismissal compensation no longer applies if the employee files a claim for protection against dismissal. An employer may not rely on this if he himself has denied that the termination was based on a rationalization measure within the meaning of of the collective agreement and the existence of this requirement cannot be recognized by the terminated employee due to the lack of a corresponding reason for the termination. In such a case, the employer is acting in an abusive manner from the point of view of contradictory behavior.