Dissolution in accordance with Section 78a BetrVG
According to § 78a paragraph. 2 Sentence 1 BetrVG, an employment relationship for an indefinite period is deemed to have been established between a trainee who is a member of the youth and trainee representation, the works council or one of the other works constitution bodies mentioned therein, and the employer following the vocational training relationship if the trainee is in the last three Months before the end of the vocational training relationship, the employer requests continued employment in writing.
The formal and timely request for continued employment creates, by law, a permanent, full-time employment relationship in the training occupation. The employer can apply to the labor court for the termination of the employment relationship created in accordance with this regulation no later than two weeks after the end of the vocational training relationship if there are facts on the basis of which, taking all the circumstances into account, it cannot be expected to continue to work.
With its resolution of November 15, 2006 ( 7 ABR 15/06 ), the Seventh Senate reaffirmed its previous case law that the obligation to continue to work under Section 78a Para. 2 BetrVG requires the existence of a vacant permanent job in the training company. The employer’s examination of the possibility of continued employment in line with training is therefore limited to the training company. However, the employer is obliged to continue to employ the trainee in ways other than those set out in Section 78a Paragraph. 2 BetrVG is obliged to comply with the working conditions if the trainee has, at least in the alternative, agreed to work under changed working conditions.
A trainee who, in the absence of a training-appropriate opportunity for further employment, also has other employment opportunities other than those referred to in Section 78a Paragraph. 2 BetrVG, the employer must be notified immediately after non-acceptance in accordance with Section 2 BetrVG in an employment relationship in the training company. § 78a Abs. 1 BetrVG of his willingness to be accepted into an employment relationship under changed contractual conditions. A declaration of consent in court proceedings is not sufficient. The trainee may not limit himself to declaring his consent to all possible jobs or attach a reservation to the declaration of willingness. Rather, it must describe the intended employment opportunity so specifically that the employer can see how the trainee imagines his future work. If an employment contract is concluded after the declaration of willingness, the creation of an employment relationship under Section 78a BetrVG is waived or changed if the agreement is made after passing the final examination.
If the trainee refuses alternative employment offered to him by the employer, he can apply in the subsequent procedure in accordance with Section 78 Paragraph. 4 BetrVG does not claim that the employment is reasonable for the employer. If the trainee has declared his willingness to work elsewhere in the training company, the employer must check whether this is possible and reasonable for him. If he fails to carry out the examination or wrongly denies the possibility and reasonableness, this can be done in accordance with Section 78a Para. 2 BetrVG does not comply with Section 78a Para. 4 BetrVG must be dissolved.