Termination

If an employee wants to claim that a dismissal is socially unjustified or legally ineffective for other reasons, he or she must file a complaint with the labor court within three weeks of receipt of the written dismissal to establish that the employment relationship has not been terminated by the dismissal, Section 4 of the Protection against Dismissal Act (KSchG).

If an employee has filed a claim for protection against dismissal in a timely manner within three weeks, he or she can, in accordance with Section 6 of the KSchG, also invoke other reasons for the ineffectiveness of the dismissal that have not yet been asserted until the end of the oral hearing in the first instance. According to a decision of the Second Senate of November 8, 2007 ( 2 AZR 314/06 ), the exclusion of ordinary termination through a collective agreement is another reason for the invalidity of a termination, which must be asserted in a timely manner in accordance with Sections 4 ff. KSchG. It is not enough that the employee mentions the application of a collective agreement to the employment relationship in the process, but does not assert the collective agreement’s exclusion of ordinary dismissal.

However, a corresponding statement of facts by the employee may, under certain circumstances, trigger an obligation to inform the labor court in accordance with Section 6 Sentence 2 KSchG. The deadline for bringing an action in Section 4 Sentence 1 KSchG also applies to ordinary terminations within the first six months of the employment relationship. In its judgment of June 28, 2007 ( 6 AZR 873/06 ), the Sixth Senate abandoned the opposing view held by the Federal Labor Court regarding the version of the Dismissal Protection Act that was valid until December 31, 2003. § 13 Abs. 1 Sentence 2 KSchG refers unreservedly to Section 4 Sentence 1 and Sections 5 to 7 KSchG for legal action against extraordinary termination. The application of Section 13 Para. 1 sentence 2, § 4 sentence 1 KSchG on extraordinary terminations within the waiting period of § 1 paragraph. 1 KSchG also corresponds to the purpose of the three-week period, which is to quickly gain clarity as to whether the termination is effective or not.

According to Section 307 Para. 1 Sentence 1 BGB, provisions in general terms and conditions are ineffective if they unreasonably disadvantage the contractual partner contrary to good faith. According to a decision of the Second Senate of September 6, 2007 ( 2 AZR 722/06 ), such unreasonable disadvantage is to be assumed as a rule if the employee waives the filing of a dismissal protection claim in a form presented to him by the employer immediately after the employer has terminated his employment.

Such a clause on the termination letter is also taken into account under Section 305c Paragraph. 1 BGB is part of the contract if it is clearly separated from the rest of the text and it clearly contains an independent regulation. The formal waiver of the filing of an action for protection against dismissal is subject to a content check in accordance with Section 307 Para. However, 1 sentence 1 of the German Civil Code (BGB) did not stand. Such a waiver of legal action deviates from the legal regulation of Section 4 Sentence 1 KSchG. Without compensation, such a formal waiver usually puts the employee at an unreasonable disadvantage within the meaning of Section 307 (1). 1 sentence 1 BGB.

If the employer terminates the employment relationship within the first six months, the termination is in accordance with. § 1 para. 1 KSchG does not refer to its social justification according to Section 1 Paragraph. 2 KSchG to be checked. According to the established case law of the Federal Labor Court, a termination within this waiting period can violate Section 242 of the German Civil Code (BGB) if it violates good faith and trust for reasons that are not covered by Section 1 of the KSchG.

In its judgment of June 28, 2007 ( 6 AZR 750/06 ), the Sixth Senate decided that a waiting period termination is not invalid simply because there was the possibility of other reasonable employment at the time of termination. The employer only has other employment opportunities within the scope of § 1 paragraph. 2 KSchG must be taken into consideration because this requirement is based on the application of the statutory protection against dismissal according to Section 1 Paragraph. 2 KSchG is based on the principle of proportionality.

The failure to implement the provisions of Section 84 Para. 1 and 2 SGB IX has the procedure mentioned in the event of termination within the waiting period of Section 1 Paragraph. 1 KSchG no consequences for termination according to the decision of the Sixth Senate. § 84 Abs. 1 SGB IX is, according to the case law of the Second Senate of the Federal Labor Court, a specification of the principle of proportionality. Outside the scope of the Dismissal Protection Act, this does not apply when checking the effectiveness of a termination.

If the employer warns the employee because of a breach of duty, he also waives the right to terminate the contract because of the breach of duty that was warned. According to a decision of the Sixth Senate of December 13, 2007 ( 6 AZR 145/07 ), this also applies to a warning that is issued within the waiting period of Section 1 Paragraph. 1 KSchG is explained. If the employer terminates the contract in the immediate context of the warning, this suggests that the termination was due to the breach of duty that was warned.

It is then up to the employer to demonstrate that other reasons motivated him to terminate the employee. In this decision, the Sixth Senate also addressed the question of whether an employee of the employer who received a letter of termination with the addition “i. A.” signed, acting as a representative or just as a messenger of the employer. If an employee signed the termination on letterhead with the employer’s letterhead, this indicates that he wanted to make the declaration as a representative of the employer, so that the written form is maintained in accordance with Section 623 of the German Civil Code (BGB). The addition “i. A.” usually nothing before the signature.

According to § 1 para. 3 Sentence 1 KSchG, a dismissal is socially unjustified if the employer did not or did not sufficiently take into account the length of service, age, maintenance obligations and a severe disability of the employee when selecting the employee to be terminated. According to the established case law of the Federal Labor Court, employees who have their employment relationships transferred to a business acquirer in accordance with Section 613a Para. 6 BGB, in the event of a subsequent termination declared by the business seller, this is due to inadequate social selection in accordance with Section 1 Paragraph. 3 sentence 1 KSchG.

However, according to the previous case law of the Federal Labor Court, the reasons for the objection should be taken into account when examining the social selection aspects. According to two decisions of the Second Senate of May 31, 2007 ( 2 AZR 218/06 and 2 AZR 276/06 ), this case law can be applied under Section 1 Para. 3 KSchG in the version applicable since January 1, 2004 can no longer be maintained. Taking into account the reasons for objection in the context of social selection in accordance with Section 1 Paragraph. 3 Sentence 1 KSchG contradicts the clear wording of the law. With the new version of the regulation, the social selection was limited to the four legal criteria.

This list is final and therefore fundamentally excludes the reasons for the objection from being taken into account in the context of social selection. The reasons for the employee’s objection to a transfer of his employment relationship in accordance with § 613a BGB cannot go beyond § 1 paragraph. 3 Sentence 2 KSchG must be taken into account. As a rule, they do not represent an opportunity to exclude all employees who were not affected by the (partial) transfer of the company from the social selection process and thus ultimately limit the group of employees to be considered for termination to the employees who object.

It is difficult to justify such disregard for these employees solely on the grounds of ensuring a balanced personnel structure. However, cases are conceivable in which, due to the objection of a large number of employees against a transfer of business and the social selection to be carried out by the employer as a result, far-reaching reorganizations become necessary which can lead to serious operational disruptions, so that according to Section 1 Para. 3 sentence 2 KSchG, parts of the employees not affected by the transfer of the business cannot be included in the social selection for this reason.

According to the concept of Section 1 Para. 3 KSchG, the social selection must be carried out on a company-specific basis. As a rule, all comparable employees who are employed in the same company as the employee who is directly threatened with dismissal must be included in the selection decision. As the Second Senate confirmed with judgments of May 31, 2007 ( 2 AZR 218/06 and 2 AZR 276/06 ) in confirmation of its previous case law, the company-related nature of social selection means that it cannot be limited to parts of the company or departments .

In particular, the spatial distance of individual branches of a retail branch in a district does not preclude the need for company-related social selection. Also a main business and a geographically distant location within the meaning of Section 4 Para. 1 Sentence 1 No. 1 BetrVG can form a business within the meaning of Section 23 KSchG. The possible independence of individual parts of the company under works constitution law does not prevent social selection across company parts. Section 23 KSchG is not based on the spatial unit, but on the organizational unit.

The market manager of an individual hypermarket of a retail branch company, who can, among other things, carry out personnel measures such as hiring and firing in accordance with detailed business guidelines and after observing the obligation to consult with the human resources department for certain groups of employees, does not have sufficient management power in personnel and social matters could justify the assumption that an individual branch represents a business in the sense of protection against dismissal. § 1 Abs. 3 Sentence 2 KSchG stipulates that employees whose continued employment is in the legitimate company interest are not to be included in the social selection. In its judgment of May 31, 2007 ( 2 AZR 306/06 ), the Second Senate decided that the employer cannot simply rely on the fact that the terminated employee is particularly susceptible to illness to justify such an interest.

Something different can only apply if, for special work tasks or areas of activity (e.g. key positions with key qualifications), a short-term replacement of other employees cannot be organized or can only be organized with great difficulty, e.g. B. because the activity to be represented is extremely complex, requires a high level of training or, due to the importance of the job (e.g. with a certain customer relationship), a frequent use of substitute staff could lead to a real risk of losing an order.

The continued employment of certain socially stronger employees may also be necessary if, as a result of a social selection based solely on social criteria, only or essentially only employees with high levels of absenteeism remain. In the dismissal protection process, the employer must regularly prove the facts that cause the dismissal. Things can be different with operational changes (e.g. shutdowns, relocations, fundamental changes to the organization). In such a case, if the employer and the works council agree on a reconciliation of interests and name the employees to be terminated, then according to the law (Section 1 Para. 5 KSchG), the evidentiary situation changes in favor of the employer.

There is a legal presumption that the terminations are due to urgent operational needs, i.e. H. In the dismissal protection process, it is not the employer who has to prove the operational reasons, but rather the employee who has to refute the presumption of operational reasons. In these cases, the social selection can only be checked for gross errors. The Second Senate has so far only related the presumption effect to the lack of further employment opportunities in vacant positions in the employing company. In his judgment of September 6, 2007 ( 2 AZR 671/06 ) he decided that the provisions of Section 1 Para. 5 Sentence 1 KSchG in principle also covers the lack of further employment opportunities in other companies of the company. This results in the interpretation of the regulation.

However, the curtailment of the terminated employee’s procedural rights associated with this scope of presumption is only justified as long as the works council’s co-examination of the underlying circumstances has taken place as the collective counterweight required by the legislature. This can generally be assumed even if it is not expressly mentioned in the reconciliation of interests. However, if the employee significantly denies that the works council dealt with employment opportunities in other companies during the negotiations, and if he also provides concrete evidence of such employment opportunities, then it is up to the employer whether he should use the extensive presumption wants to present and prove that the company parties are dealing with the question of employment opportunities in other companies.

According to § 1 para. 2 KSchG, the dismissal of an employee is, among other things, socially justifiable if it is caused by reasons relating to the employee. The employer should be able to terminate the employment relationship if the employee no longer has the necessary suitability and skills to perform the work owed in whole or in part in the future. According to a decision of the Second Senate of January 18, 2007 ( 2 AZR 731/05 ), these requirements are not yet met if a (working) student hired to work in baggage service is no longer eligible under social security regulations due to his excessively long period of study is exempt from social security.

This circumstance does not represent a necessary suitability feature for the work owed. Even if the contracting parties have established the student status of an employee as an essential contractual criterion and if this were to be eliminated, continued employment under unchanged working conditions would be unreasonable for the employer because the social insurance obligation has significantly changed the exchange relationship between performance and consideration, a necessary contractual adjustment cannot be made not just a timely termination notice, but at most a change notice.

If an employee is unable to work continuously or repeatedly for more than six weeks within a year, the employer must, in accordance with Section 84 Para. 2 Sentence 1 SGB IX, with the participation of the affected employee and the interest group, to clarify how the inability to work can be overcome as far as possible, what benefits or assistance can be used to prevent renewed inability to work and to maintain the job. According to a decision of the Second Senate of July 12, 2007 (2 AZR 716/06), the implementation of operational integration management in accordance with Section 84 Para. 2 SGB IX no formal effectiveness requirement for personal termination for illness-related reasons.

The need for such operational integration management exists for all employees and not just for disabled people. A lack of integration management according to Section 84 Para. However, 2 SGB IX does not per se lead to the ineffectiveness of a termination due to illness. The provision of Section 84 Para. 2 SGB IX is not a prohibitory law. However, the legal regulation is not just a program statement, but rather an expression of the principle of proportionality that governs the right of termination.

Termination is not justified if there are other suitable, milder means to remedy the breach of contract in the future. Corporate integration management itself is not such a milder means. However, this procedure allows milder means, e.g. B. the redesign of the workplace or continued employment under changed working conditions at another workplace can be recognized and developed. If the employer has not carried out operational integration management, this can have consequences for the burden of presentation and proof.

In this case, he may not limit himself to making a general statement that he knows of no alternative employment options for the sick employee and that there are no “vacant jobs” that the sick employee can still fill due to his illness. Rather, what is required is a comprehensive, concrete presentation by the employer about the fact that it is no longer possible for the employee to be deployed in the job he previously held and why a suitable adjustment and change is excluded and why the employee cannot be deployed to another job with a changed job.

According to the established case law of the Second Senate, a notice of termination for operational reasons is effective if the employer, for reasons that are in itself recognized, has limited itself to only proposing changes that the employee must reasonably accept. With its judgment of March 29, 2007, the Second Senate ( 2 AZR 31/06 ) continued this case law and decided that the employee can make operational changes to the working conditions by means of a change of notice, with which the employer avoids a termination notice that would otherwise be necessary for economic reasons The principle of proportionality must always be accepted fairly.

If it is clear at the time of termination that the transfer of his employment relationship to a business transferee in accordance with Section 613a Para. 6 BGB, an employee can no longer continue to be employed by his employer, the employer’s offer to loan the employee to the transferee so that he can continue to work there as before does not generally violate the principle of proportionality. This also applies if the employer only offers the employee the continuation of the employment relationship at the lower wage that the transferee pays his employees in accordance with the collective agreements relevant in his company.

According to § 1 para. 5 KSchG applies if the employer and the works council have agreed on a balance of interests in which the employees to be dismissed are named, a legal presumption applies that the dismissals are due to operational requirements. In these cases, the social selection can only be checked for gross errors. According to a decision of the Second Senate of June 19, 2007 ( 2 AZR 304/06 ), this regulation also applies to termination notices. Section 2 KSchG does not contain any express reference or reference to this regulation. However, Section 2 KSchG does not contain a separate concept of social justification.

Rather, the regulation simply refers to Section 1 Paragraph. 2 sentences 1 to 3 and paragraph. 3 Sentence 1 and 2 KSchG. The scope of the subsequent presumption extends to the loss of the need for employment under the previous conditions, including the lack of other employment opportunities in the company. The presumptive effect of Section 1 Para. In any case, Section 5 Sentence 1 KSchG must also be extended to the lack of further employment opportunities in another company in the company if the reconciliation of interests is concluded by the central works council responsible for this. The application of Section 1 Para. 5 KSchG when examining the existence of urgent operational needs does not automatically mean that the proposed change must be reasonably accepted by the employee.

In any case, if the reconciliation of interests does not contain any substantive requirements regarding the proposed changes to the employment contract, a shift in the burden of presentation and proof will be at the expense of the employee, as § 1 para. 5 KSchG provides for it can hardly be justified. However, if the operating parties have included individual planned changes in the reconciliation of interests, the works council may have co-assessed the part of the change offer contained in the reconciliation of interests and there may be sufficient justification for the presumption in Section 1 Paragraph. 5 KSchG also exist with regard to the change offer.

According to Section 84 Para. 1 SGB IX, if difficulties arise in the employment relationship with a severely disabled person, the employer is required to carry out a prevention procedure as specified in the law. In its judgment of December 7, 2006 ( 2 AZR 182/06 ), the Second Senate decided that the implementation of this prevention procedure is not a formal effectiveness requirement for the decision 84 of termination. Likewise, Section 84 Para. 1 SGB IX, however, represents a purely regulatory regulation with a purely appellative character, the disregard of which would in any case have no consequences.

The aim of legal prevention is to clarify at an early stage whether and which measures need to be taken in order to ensure that the employment relationship is continued as long as possible. The statutory prevention procedure thus represents a concretization of the principle of proportionality inherent in the entire protection against dismissal law. A termination can therefore be judged to be socially unjustified due to a violation of the principle of proportionality if there would have been opportunities to avoid the termination if the prevention procedure had been carried out properly.

Termination without this consent is invalid. If the integration office has agreed to the termination, the employer can declare the termination within one month, § 88 para. 3 SGB IX. According to a decision of the Second Senate of November 8, 2007 ( 2 AZR 425/06 ), this can happen several times if the reason for termination remains unchanged. In this case, the consent of the Integration Office cannot be “used”. It eliminates the ban on dismissal for a period of one month for severely disabled people. During this period, if the circumstances of the termination remain the same, the employer can terminate the contract several times without having to obtain further approval from the Integration Office.

Conversely, the failure to carry out the prevention procedure does not prevent termination if the termination could not have been prevented by the prevention procedure. If, after a thorough examination, the Integration Office has come to the conclusion that consent to termination must be granted, it can only be assumed that a prevention procedure in accordance with Section 84 Para. 1 SGB IX could have prevented the termination. According to Section 85 SGB IX, the termination of the employment contract of a severely disabled person by the employer requires the prior consent of the integration office.

The consent requirement according to Section 85 SGB IX only covers dismissals of employees who are already recognized as severely disabled when the dismissal is received or who have submitted the application for recognition at least three weeks before the dismissal is received, Section 90 para. 2a SGB IX. In its judgment of March 1, 2007 ( 2 AZR 217/06 ), the Second Senate decided that the provision of Section 90 Para. 2a SGB IX applies not only to severely disabled people, but also to disabled people who have the same status under Section 68 SGB IX.

They are also excluded from special protection against dismissal if they have not submitted the equal opportunity application at least three weeks before the dismissal. The special protection against dismissal takes place according to Section 90 Para. Yes, A. Alt. SGB IX only applies if the provisions in Section 69 Para. 1 Sentence 2 SGB IX certain three-week period upon receipt of notice of termination has passed, a determination by the pension office (or the Federal Employment Agency) has not been made and the absence of the determination is not due to a lack of cooperation on the part of the applicant. The application must therefore be submitted at least three weeks before the termination. § 90 Abs. Yes, A. Alt. SGB IX thus proves to be a determination of an early deadline.

This also corresponds to the purpose of Section 90 paragraph. 2a SGB IX, to push back against abuse of the special protection against dismissal. 87 With its judgment of September 6, 2007 (2 AZR 324/06), the Second Senate confirmed its case law on proof of severe disability in accordance with. § 90 Abs. 2a SGB IX continued and decided that § 90 para. Yes, A. Alt. SGB IX as a restriction of the first alternative of Section 90 Paragraph. 2a SGB IX must be understood. In principle, the special protection against dismissal does not apply if the status of a severely disabled person or equivalent person is not proven at the time of termination (first alternative).

This clearly does not mean that every operation of a recognition procedure should be made obsolete in the period after receipt of the notice of termination, but only those that are usually hopeless. h) The employee’s special right of termination If the employee has filed a claim for protection against dismissal after the employment relationship has been terminated and the labor court determines that the employment relationship was not terminated by the termination, the employee can, in accordance with Section 12 KSchG, file a corresponding complaint within one week of the judgment becoming legally binding Declaration to the old employer refusing to continue the employment relationship with them if he has entered into a new employment relationship during the course of the dismissal protection process. According to a decision of the Sixth Senate of October 25, 2007 ( 6 AZR 662/06 ), the employee is not entitled to this special right of termination if he has taken up self-employment during the dismissal protection process. Section 12 of the KSchG does not apply analogously if the employee takes up self-employment, as there is no unplanned loophole in the law. In this case, the declaration nevertheless made in accordance with Section 12 KSchG must generally be reinterpreted as an ordinary termination at the next permissible date (Section 140 BGB).

On the other hand, according to Section 90 Para. Yes, A. Alt. SGB IX, the special protection against dismissal exists despite a lack of proof if the application was submitted so early before notice of termination that a decision can be made before the termination is issued, with the applicant’s proper cooperation, within the deadline set out in Section 69 Paragraph. 1 Sentence 2 SGB IX would have been possible. The application must therefore be submitted at least three weeks before the termination. If this is the case and the lack of proof is not due to a lack of cooperation on the part of the employee, the special protection against dismissal applies. According to the decision of the Second Senate of September 6, 2007, this also applies if, at the time of termination, there is a negative decision from the pension office that is not yet final and later repealed. The law regulates the loss of special protection against dismissal in this case in Section 90 Para. 2a SGB IX is not applicable. The legislature wanted to rule out “the possibility that special protection against dismissal also applies to the period in which a generally hopeless recognition procedure is being carried out.”