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Employment law

Termination of an employment contract

The termination of an employment contract serves to end an employment relationship. Under employment law, it does not matter whether the notice of termination is given by the employer or the employee. We will advise you in confidence on the preparation of pending terminations or problems following terminations that have already taken place.

The attorneys at white ip | Patent & Legal have a high level of expertise due to their many years of experience in the field of employment law, with a wide variety of employment contracts and a large number of dismissal protection proceedings. They will be happy to advise you on pending terminations of employment contracts or problems following terminations that have already taken place.

Our team is available for you by telephone on 0351 -896 921 40 or by e-mail at recht@white-ip.com.

We are available for consultations in Dresden, Leipzig, Berlin, Cologne, Munich, Hamburg and beyond. Contact us with your request and your wish for an online or on-site consultation!
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01.

General information

It is essential to note that the written form of the dismissal is required by law. If you are unsure about the letter of dismissal itself, our lawyers at white ip in Dresden will be happy to help.

Furthermore, according to applicable labor law, the dismissal only becomes effective upon receipt by the recipient of the notice. Therefore, if the notice of termination of employment contract is dropped in the letterbox on April 30 at 11:00 p.m., it will generally only be received on May 1. The notice period begins on the day of receipt. If this is 4 weeks to the 15th or end of a calendar month for the employee (as is the legal rule), the employment relationship ends at the end of 30.09. If the suspension is received on 02.09., on the other hand, the employment relationship does not end until 15.10.

There are often uncertainties when it comes to calculating the correct deadline. If you also feel uncertain about this, then you should definitely seek advice from our lawyers. The lawyers at our law firm in Dresden will be happy to answer any questions you may have regarding the termination of employment contracts and the various forms of termination.

It should also be noted that the person giving notice must also be authorized to terminate an employment contract. In case of doubt, a lawyer should be consulted before the notice of termination is issued. Especially on the employer’s side, representatives often declare the suspension. If the employee is not aware of their authority to terminate and they immediately reject the termination, the suspension is invalid, at least for the time being. Our lawyers in Dresden, who specialize in the termination of employment contracts, will be happy to provide you with comprehensive advice in this regard as well.

In general, a distinction is made between ordinary and extraordinary termination of the employment contract, with the main difference between the two forms being the notice period. If the employment relationship continues for at least 14 days during the probationary period after an ordinary termination, and even up to seven months after the probationary period of four weeks, extraordinary termination generally terminates the employment relationship without notice.

02.

Extraordinary termination of the employment contract

Due to the termination without notice of the extraordinary termination of the employment contract, good cause is required for it to be effective. Such a reason is only given if it would also entitle to an ordinary termination and the reason is so serious that the terminating party cannot reasonably be expected to adhere to the employment relationship until the end of the notice period. The existence of good cause should ideally also be confirmed by a lawyer specializing in terminations.

Important grounds for termination of the employment contract include in particular

  • persistent refusal to work
  • unauthorized taking of leave
  • Insults and assaults
  • Acceptance of bribes
  • Breach of confidentiality obligations
  • Property and financial offenses
  • Feigning illness / illness with announcement
  • Private Internet use at the workplace, insofar as this is prohibited
  • Violation of the Narcotics Act

Of enormous importance for the effectiveness of extraordinary termination in employment law is the 2-week period of § 626 para. 2 BGB . Accordingly, the employment contract can only be terminated for cause if the dismissal takes place within two weeks of the good cause occurring. The terminating party (usually the employer) is granted a certain period of time to clarify the facts of the case. A lawyer should be consulted immediately upon receipt of a termination for cause.

Particularly in the case of persistent violations or unclear situations, the 2-week period can be very long, meaning that even dismissals can be effective more than 1 month after the violation. A lawyer for dismissals and general employment law from our law firm in Dresden will be happy to advise you in order to clarify whether such a case exists or whether the two-week period must be observed.

03.

Ordinary termination of the employment contract

Ordinary termination of the employment contract is generally divided into three sub-categories, whereby this distinction is only relevant if more than 10 employees regularly work in the company in which the employee is employed, as otherwise the Dismissal Protection Act does not apply to a large extent. However, not every employee counts as 1 in the sense of employment law. Rather, employees with an employment period of up to 20 hours only count as 0.5 and with a period of more than 20 and up to 30 hours as 0.75. In addition, the employment relationship must have already existed for 6 months, otherwise the Dismissal Protection Act does not apply either. Our specialist lawyers in Dresden will help you to thoroughly check all circumstances relating to the employment relationship to be terminated beforehand.

In the context of any suspension, it must also be clarified whether a less severe remedy is available. For example, a transfer of the employee or continued employment under changed working conditions is preferable to termination of the employment contract. Therefore, in order to avoid dismissal protection claims, every ordinary dismissal should be evaluated in advance by an employment lawyer.

In addition, each dismissal must be examined to determine whether the employee’s interest in continued employment does not outweigh the employer’s interest in terminating the contract in the individual case.

This weighing of interests in individual cases is extremely difficult and is regularly not carried out properly by the employer before the dismissal is announced. Our lawyers for termination of employment contracts can also help here. Although this does not mean that the suspension is invalid per se, it does increase the risk of losing the case “unexpectedly”. Our specialist lawyers for employment law in Dresden will be happy to provide you with appropriate advice and an assessment of the effectiveness of the termination.

04.

Termination for conduct-related reasons

Conduct-related dismissals are dismissals that are issued due to controllable behavior on the part of the employee. The basis is always a breach of contractual obligations. If you are unclear about these obligations, our lawyers for dismissal law can help you at any time.

As dismissal is not intended to sanction past conduct in accordance with the principles of employment law, but rather to prevent expected future misconduct, the so-called acceptance requirement applies in the context of dismissal for conduct-related reasons.

If the employee has not already received a relevant warning for a comparable breach, the immediate termination for conduct-related reasons is generally ineffective, as it cannot be predicted that the employee will continue to breach the contract in the future. Case law in employment law always sees suspension as the last possible resort. It assumes that the employee will allow the warning to serve as a warning and refrain from misconduct in the future, at least if the breach is not so serious as to justify immediate dismissal without notice. Only if the employee repeats the same misconduct after a corresponding warning can it be assumed that he or she will not behave properly in the future and only then can he or she be effectively dismissed for conduct-related reasons. It should be noted, among other things, that the warning must be (effective and) relevant. For example, if the employee was warned once because he was late for work and the violation is now due to the fact that he smoked in the non-smoking area during a customer meeting, this constitutes two different accusations. It would be extremely difficult to enforce this as a proper warning in court.

It is advisable to consult a specialist lawyer for employment law after the first warning in order to avoid legal errors. It is therefore best to seek advice from our specialized Dresden lawyers for dismissal law in advance.

05.

Termination for personal reasons

A dismissal for personal reasons is given if the reasons for the dismissal lie in the person of the employee and the employee basically has no influence on this. This may be the case, for example, if a driver’s license is revoked for several months or if someone falls ill for an unforeseeable period of time and is absent from work. We will be happy to inform you about other possible reasons during a personal consultation at our law firm in Dresden or online.

In order for the dismissal to be effective under employment law, a so-called “negative future prognosis” must be drawn up. This means that it must be established that the employee will not only be unable to fulfill their contractual obligations at present, but also in the future, due to their personal skills or characteristics. In order for this prognosis to stand up in court, it should be reviewed by a lawyer who is familiar with the termination of employment contracts.

In addition, the employee’s absence must also lead to specific and significant impairment of the employer’s interests. This is usually only the case if there is a disruption to business operations. Let’s stick with the example of the driver whose license has been revoked: If, for example, this employee could also hold a position in the office (at least for the duration of the withdrawal), the termination of the employment contract for personal reasons will most likely be invalid.

One immensely important point is the implementation of a so-called “company integration management” (BEM for short) prior to the dismissal of employees on long-term sick leave. In practice, this is often criminally disregarded by most employers when dismissing employees for personal reasons. Without prior implementation of the BEM, the dismissal is almost always invalid. A proper BEM requires that, together with the employee and other relevant bodies (e.g. works council or integration office in the case of a severely disabled person), possibilities are sought to gradually reintegrate the long-term sick employee into the company. The relevant labor law requirements are relatively strict and allow little leeway.

If you have any questions about the BEM and its implementation, please do not hesitate to contact us. Our Dresden lawyers for dismissal law will be happy to advise you.

06.

Dismissal for operational reasons

An employment contract is terminated for operational reasons if the reason for termination is an urgent operational requirement. This can be, for example, an extremely poor order situation / the threat of insolvency, but also a complete loss of employment due to a free entrepreneurial decision. If, for example, an employer decides to use an external company to distribute its goods instead of its own in-house delivery staff, these jobs in the company will be lost without replacement. The employees in these workplaces can regularly be effectively dismissed in accordance with the applicable employment law, although it should again be noted that suspension may only ever be a last resort.

In addition, the employer must carry out a social selection before issuing a proper dismissal for operational reasons. In practice, this is neglected by many employers, which leads to the dismissal being invalid. We therefore once again advise you to contact a specialist lawyer for employment law in advance.

As part of the social selection process, employment law sets out precise criteria as to how this is to be carried out. Specifically, a comparison is made between employees within the company, whereby only employees whose work in the company is comparable are included in the social selection. The criteria for social selection are age, length of service, any existing maintenance obligations (in particular children) and any existing severe disability of the employee. This data is used to select the employee who is most likely to find employment again as quickly as possible after suspension.

Here too, our highly specialized Dresden lawyers from the “Employment Law Team” will be happy to assist you and advise you comprehensively and professionally on how to carry out a proper social selection. Our lawyers at white ip are of course also available to represent you in any dismissal protection proceedings.

07.

Notice of termination

A special form of termination of the employment contract that should not go unmentioned is the so-called notice of termination with change of contract. This is initially a completely “normal” extraordinary or ordinary termination. However, the special thing about a notice of termination with change of contract is that this dismissal is accompanied by an offer to conclude a new employment contract under changed conditions. For this reason, this is also an extensive and legally problematic issue that our lawyers for employment law in Dresden are repeatedly confronted with. A dismissal with notice of change is often chosen as a means if the employer wishes to issue instructions to the employee in principle, but these would go beyond the limits of his authority to issue instructions and would therefore be ineffective. A typical example would be if the employer wants to transfer the employee to another department with lower pay and less bonus. In this case, the employer chooses to terminate the employment contract with notice of change. He terminates the employee’s existing employment relationship and offers him the new position at the same time.

Since a notice of termination with notice of change, in particular the offer of change, is subject to strict requirements, we strongly recommend that you seek advice from our Dresden employment law lawyers at white ip in advance.

For example, the offer of change must be formulated so precisely that the employee only needs to say “yes”. If the employee’s simple “yes” leaves any ambiguities regarding the future conditions of the new employment relationship, the notice of change is invalid. Every employment lawyer will therefore carefully examine the offer of change in a dismissal protection process.

Employment law provides employees with three possible responses to a dismissal with notice of change:

  1. He can accept the dismissal and the offer of change. The new employment contract then applies.
  2. He can reject the offer of change and take legal action against the dismissal with notice of change. This is then a normal dismissal protection procedure.
  3. Or he accepts the offer of change with reservations, then initially works in the new position and at the same time takes legal action against the dismissal with notice of change. If he wins, he must be reinstated in his old position and, if necessary, receive additional pay.
Employment law

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