You work in Germany and have received a letter of termination/dismissal (Kündigung) from your employer ?
Here is a first overview of your options:
Protection may apply
Dismissals in Germany are often restricted by the Protection against Unfair Dismissals Act (Kündigungsschutzgesetz). But not every employee falls automatically under this protection. For example the Protection against Unfair Dismissals Act does not apply to the employees of small companies (ten or less employees). Neither does it apply to employments with a duration of under six months. If these conditions do not apply, employers usually have the right to terminate employment contracts within the statutory notice periods. They do not have to give any reason either. However the employee should have a lawyer for employment law (Fachanwalt für Arbeitsrecht) check, if the dismissal might be invalid for other reasons.
Under the Kündigungsschutzgesetz the employer needs a valid reason to justify the termination.
What are the valid reasons for a Termination / dismissal?
A termination is only deemed justified if it is based on reasons related to:
1) the employee as person, e.g. health issues which result in long term work incapacity ;
2) the personal conduct of the employee, e.g. theft of company property,
3) urgent business requirements which prevent the continued employment of the employee in the establishment, e.g. the discontinuation of the relevant department.
There may also be the possibility of special protection against unlawful dismissal. This kind of protection applies to an employee who is an officially acknowledged handicapped person, an employee on maternity leave or a pregnant employee.
There are however certain formalities which apply to every dismissal:
The employer must observe the lawful notice period. This period is determined by statutory law and depends upon the length of employmen). Usually the notice period is governed by the civil code (Bürgerliches Gesetzbuch).
Any notice of termination must be in writing and signed by hand by the employer.
In what time period must an Appeal take place?
Keep in mind that there is a 3 week legal deadline to appeal against this termination. This is done by entering a wrongful dismissal lawsuit at the labour court / industrial tribunal (Arbeitsgericht). This is usually done by a lawyer specialized in labour / employment law /Fachanwalt für Arbeitsrecht).
If you miss the deadline the termination comes into legal effect even if it is an obviously wrongful dismissal. It is very difficult to get a reinstatement.
What are the consequences of missing the Deadline?
By accepting the termination / dismissal you also relinquish the possibility of receiving a lucrative compensation / severance payment (Abfindung) from the employer. In Germany such compensations are usually only agreed upon to end a wrongful dismissal law suit . They are meant to prevent an otherwise lengthy legal process.
Accepting a termination might also have negative consequences for your right to receive unemployment benefits. E.g. if you do not appeal against a too short notice period your unemployment benefits will be significantly reduced and you might not be entitled for the first three months of unemployment.
Finally entering a wrongful dismissal lawsuit is also an effective tool to receive a good certificate of employment (Arbeitszeugnis). This certificate is of great importance when applying for a new job. Usually the Arbeitszeugnis is part of the compensation agreement. The employer is usually happy to upgrade the certificate in return for a reduced compensation payment.
We are here to help you!
Obviously this is only a short introduction into this very important topic.
Do not hesitate to contact us for a preliminary talk, which is free of charge, to ascertain whether we can help you and as to the costs involved.
In Germany the lawyer is usually paid according to the Lawyers’ Fee Statute (RVG=Rechtsanwaltsvergütungsgesetz).
Depending on your income you may be entitled to legal aid (Prozesskostenhilfe/Verfahrenskostenhilfe).
Christopher von Preuschen is a english speaking certified specialist lawyer, attorney, solicitor (Fachanwalt) for labour and employment law in Bonn and Cologne/Köln.