Termination of Employment

Having a job or not, that is here the question. If an employee is to be fired, a lot of rules have to be obeyed... Basically, the employee has to follow the same rules as his employer.

Overview

• Termination pursuant to Rules of Civil Code
• Termination pursuant to Rules of Unfair Dismissal Act

At home, I know that bosses can hire and fire as they like. What is it like in Germany? When can employers terminate an employment?

The slogan “hire and fire” does not apply to German law. In fact, it would be safer to say that employers are subject to “Hire and hooked”.
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After signing a contract five months and three weeks ago, I received a termination from my company that my position is canceled in two weeks. Huh? What’s going on? My boss mumbled something about probation time. I thought I was on for good.

Well, you either did not read, or understand your contract. You seem to be on a probationary period. According to §622 III BGB. The law states that the probation period may last up to 6 months, the period of notification inside this testing period must be at least two weeks.
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My boss is a nincompoop! I don't want to work here more than necessary. Happily, we arranged for a probation period. I just canceled the job with an email.

Oh, well. You are in for it! Your termination is null and void because it lacks the right form. The cancellation letter must be in writing. An electronic dismissal is invalid (§623 BGB)! It really must be in writing. Writing is strictly understood as hard copy and wet ink! An email is considered as text form.
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I just was just fired from my job. I do not want to accept it unless I must. How can I test the legality of the termination?

To test the validity of a termination letter, the first thing you have to do is check out, whether your case falls under the Law on Protection against Terminations (Kündigungsschutzgesetz) or civil code (BGB). Either of these acts will rule in your case. If your case will not fall under the Dismissal Protection Act then the general rules of the Civil Code will govern.
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My boss sent me a letter in German. He knows that my command of German is very limited. After asking the help of some friends, I found out that it was a pink slip. Is this valid?

If you only know and understand the one German word “Kündigung”, you got the letters point. If you want to fight against this notice get in contact with the attorney of your trust – ASAP.
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I often have talked rudely in public about my company. I called them “a bunch of nincompoops, thieves, and murderers”. Now they fired me without prior notice. Was that legal?

The grounds you mentioned surely justify firing you without prior notice. The only question is whether they obeyed the formal requirements. Your boss has to give notice in writing (at the moment, it is unclear whether a fax is sufficient). It is not sufficient to fire somebody orally.
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My boss dismissed me last week for absolutely ridiculous reasons. I want to sue him to take me back. If I win, who will have to pay the attorney’s fees?

It does not matter who wins. You must pay your own attorney (§12a ArbGG). That relates only to the first instance. Ask your attorney before hiring him how high his bill will be. By law, he has to tell you what he will charge.
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I just gave birth to my daughter in a town in Hesse. As a proud Muslim, I started wearing a headscarf not only at home but also in the department store where I work. My boss fired me on so-called person-related grounds. I have worked for him for ten long years, and now he tells me he is afraid that my scarf will turn off his customers!

Good news! The Bundearbeitsgericht(Federal Labor Court) has ruled against an employer in a similar case (October 10, 2002 re 2 ARZ 472/01). There are two sides to this issue. Generally, employers have the right to set dress rules for their workers. He has certain business freedoms anchored in the German constitution. Just the same, your boss has to consider your constitutional right to your religious beliefs. Balancing the rights of the store and the worker, the court found that the store’s potential economic loss must yield to your religious rights. Specifically, the court said the store has to wait and see whether your headscarf really does annoy his customers. Even if it does, the store has to offer you alternative employment (for instance, by transferring you to another department where you can use your qualifications and wear your scarf)...
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Hey, I just got fired! Will I lose my health and pension insurance now?

No! By no means!! You are talking of legal relationships exclusively between you and the relevant (public / private) insurance. Your employer is by law obligated to share half of your social securtiy premiums. When you receive unemployment benefits, the labor office will pay for them – even though a significantly reduced rate. No, you will not be obligated to pay the difference. This shows the importance of private old-age security once again. The only thing you might loose could be a direct insurance by your employer.
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Baah! As I came home yesterday, I found a letter from my employer in the mail box. That twit of a boss admonished me for being too rude with my colleagues. What am I to do with that letter?

Be on good behavior. A notice is generally to be preceded by an admonishment! This arises from the function of the admonishment! The functions of the admonishment are:

1. Hint to behavior contrary to duty ("function of hinting"),
2. Illustrate that the employer is not willing to tolerate a certain act which is contrary to the employment contract and is now threatening consequences in the case of a repetition ("function of warning and threatening ").
3. Documenting the offence and rebuke in the personnel file ("function of documenting").
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Aha. My best friend lost his job without first being admonished. You just mentioned that generally an admonishment is to precede firing.

That is correct, generally a warning comes first but there are several cases, where such is not necessary and the employer may fire without admonishing first. These reasons are e.g.:

1. when a possible change in behavior is not to be expected in the future,
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2. severely infringing the employment contract, when the employee ought to understand that such behavior will lead to being fired,
3. when the non-obedience so damages the employer's trust that it cannot be reinstituted with an admonishment.

Can you give me some examples? This is oh so very abstract.

An admonishment can be waived for:

1. intentional infringement of important provisions of industrial health and safety,
2. threatening with sickness when vacation is not granted for certain periods or the granted vacation is not prolonged in spite of the employee having no reasons to be sick or objectively based has no grounds to feel sick,
3. persistently, stubbornly, refusing to work in a manner unable to be reconciled,
4. intentional manipulation in recording of working hours,
5. crimes against the employer or colleagues in the company,
6. accepting bribes.
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Darn it! My twit of an employer did not grant me vacation so I can watch the finals of the World Soccer Championship. He had his chance! I will now call in sick. Murphy’s Law is something that is really applicable to me. So what will happen if my employer finds out that I only wanted to watch the finals?

Germans describe your intentions as „krankfeiern“. When your employer catches you the first time, he has to admonish you. In other words, he will write a “nasty” letter and complain about your misbehavior. The second time he can terminate the employment immediately. When this issue (calling in sick) comes to court, the employer only has to present his serious doubts about the employee‘s illness. Then the employee has to prove that he was really sick and important business concerns did not arise due to his illness.
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Relevant Checklists

The checklists below are not just a repetition of any table above but they also cover further hints to help you make the right decision if it is worth the trouble to consult an attorney to represent your interests.

• Checklist for Ordinary Civil Code Notices (Labor Law)
• Checklist for Ordinary Notices according to KSchG

Termination According to BGB

If the working conditions are more intimate because the employing company is small the basic rules of the Civil Code will apply.

How much notice does an employer have to give?

It depends on how long the employee has worked for him or her:

I am sick and tired of working for this guy who hired me. I want to quit. How long is the period of notification?

You have to give the employer 4 weeks to end on the 15th or to the end of the month (§622 I BGB). Be aware that oral notification is not valid, so you must give notice in writing (§623 BGB). If you fail to give notice in writing, you are required to keep working and your boss will not have to pay you for the time you stayed home!
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Termination According to Kündigungsschutzgesetz - Unfair Dismissal Act

Is the employee in a bigger business then the Act on Unfair Dismissal will be applicable.

When is the business "big" for this law applicable?

This law is applicable for all employers having at least 10 full time employees (§23 KSchG). ## bitte ergänzen / aktualiseren ##
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What are the rules for a dismissal following the Kündigungsschutzgesetz aka Unfair Dismissal Act?

The boss can only give notification, if firing is “socially justified” (§1 KSchG). ## bitte ausführen zur sozialen Gerechtfertigkeit ##
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Who counts as a full time employee?

Employees who are working for at least six months in the same firm. Apprentices do not count as employees. Part-time workers count ½ if they work up to 20 hours a week, and ¾ for up to 30 hours.
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What kind of reasons exist to fire an employee?

There are operational, person-related and conduct-related reasons for dismissal, also to be met (§622 III BGB).
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When can an employer bring forward operational reasons to dismiss any employees?

Operation reasons apply when a special position is abolished, further employment in another position is not available, and the “Sozialauswahl (social selection)” fell on you. The employer must give detailed reasons on why all three grounds implicate a particular employee. Details depend on whether the operational reasons are either “internal” or “external”.
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What is meant by “internal operational reasons” for dismissal?

If your boss wants to fire you for internal reasons then he must prove that

• he made a genuine operational decision, and described the contents of his decision in detail,
• he really implemented that decision,
• he showed the potential impact of his decision on the need to keep you (by the time notice takes effect),
• his decision affected only the workers directly linked to the positions he wants eliminate.
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What is meant by “external operational reasons” for dismissal?

If your employer wants to fire you for external reasons, he must meet the following requirements:

• She must be able to prove that the alleged external reasons really exist to the extent she alleges.
• The external reasons must have direct and unavoidable impact on the need to keep you.
• Only such jobs are affected by the alleged external reasons directly related to yours.
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Are there any exceptions to the Sozialauswahl?

The change in the law in 2004 allows the possibility of keeping certain persons out of social evaluation (§1 III 2 KSchG): special knowledge, special abilities or employees important for balanced personnel structure and personnel structure represents a just operational interest.
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When is a dismissal socially unjustified?

In balancing the interests of worker and firm, it is vital to look at workers whose jobs are similar and who occupy similar jobs in the hierarchy of the firm. The criteria here include

• length of employment in the company,
• one’s age,
• child (and other dependents) support,
• health (including disabilities),
• marital status,
• job prospects

In other words, the employer must present compelling reasons for dismissing a particular employee and not someone else, who needs the job more. Of course, he has some discretion. The rules on social justification take second place at times, as long as the employer can show compelling reasons in the realms of operations, economics, and other justifiable concerns. With the change of the law in 2004, there is also the possibility to keep certain persons out of social evaluation (die Sozialwahl nach §1 III 2 KSchG): if you have special knowledge, abilities or if you are important for a balanced personnel structure, then this can represent a just operational interest.
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What are person-related grounds for firing?

Person-related grounds allege the objective inability to fill your position. They cover for example: constant or frequent illness leaves, loss of state license, lost physical ability due to an accident. This reason for dismissal may only be used when it is really unavoidable to cancel your job. Three considerations are necessary for this:

1. When notice is given, the facts must justify serious concerns that you will not be able to do your job in the future.
2. This prognosis must show that considerable disturbances of the operational process will occur, or, that he will lose a lot of money due to your inability to do your job.
3. Dismissal must pass the balance of interests of the employer and employee. For instance, let’s say you failed to renew your job permit on time because you incorrectly understood to have permanent residency. In this case, the employer’s interests may override yours.
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What are conduct-related reasons for dismissing?

Neither the courts nor the legal experts have come up with perfect criteria for this procedure. As a rule of thumb, we can say only that there are conduct-related grounds for dismissal if an employee has done something truly worthy of blame (e.g. theft of company property). And even in "evident" cases, there still remains the risk that a labor court might rule to the employee's advantage.
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I just was given a dismissal with the option of altered conditions of employment. Do I have to give into this?

In general, no. This form of dismissal is unlike others in that it follows the bosses contention that “I do not need this worker in that job anymore, but I have other positions he could fill. So I want to shift him from A to B.” If you get a notice like this, you have 3 weeks to accept the notice with or without reservation. (Getting specific: the reservation can only be that the dismissal is not “socially justified.”) Be careful: if you decline to accept the “altered conditions of employment,” your notice will be considered final. But don’t give up now! You can still contest this final notice in court within 3 weeks of your decision (§4 KSchG).
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My boss fired me one month ago. What can I do about it?

Virtually nothing. The law allows you to file a court case within three weeks of dismissal (§4 KSchG). You can get only an extension if some problem prevented you from filing on time despite your best efforts. You will have to file within 2 weeks after solving this issue and within 6 months after the first 3-week deadline. If your head is spinning with numbers, here’s an example: If you were fired on January 15, the first deadline comes on February 5. This date is the normal period for suing your employer for an unfair dismissal. Now, let's assume you have a serious issue that hindered you to file on time. The very last chance for filing a lawsuit will be on June 15.
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As I have noticed for some time, my boss has been reorganizing the company by changing job descriptions and even firing people. Now it has got me. My boss is offering me a dismissal pay. How am I to understand that?

Just simply understand that your boss cannot use you in his company anymore and wants “to treat” you to leave. Usually you have no right to demand a severance pay. Do not understand “pay” too literally; it can be either in money or in goods or otherwise.
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When can I claim a severance payment?

Generally, you do not have the right to demand a dismissal pay just because you lose your job. The exceptions to this rule are:

• instead of suing (or continuing the lawsuit against) your employer for unfair dismissal and claiming your job back, you agree to leave if you receive a severance payment.
• if the employer has disclosed that he terminated you for redundancy and if he has offered you severance pay for letting the three weeks deadline expire, then you will be entitled to the severance payment as soon as the three weeks have passed (§1a KSchG).
• in case of operational changes and mass redundancies above a certain threshold, the works council is allowed to negotiate a so-called "Sozialplan (social plan)" with the employer. In such case, you may claim a severance pay under the social plan.
• if your employer ignores the requirement to negotiate the “if” and “how” of a on operational change/mass dismissal with the works council (so-called Interessenausgleich / reconciliation of interests), you may sue your employer for a severance payment in form of the so-called Nachteilsausgleich (compensation for disadvantages).
• some collective labor agreements provide for severance payments (e.g. so-called Rationalisierungsschutzabkommen / restructuring avoidance treaties).
• if the dismissal was unfair, and it cannot reasonably be expected for you to continue, the court will, upon your petition, dissolve the employment relationship and award you a severance payment.
• if the dismissal was unfair, but it is unlikely that a continued working relationship would serve the business interests of your employer, the court will, upon your employer’s petition, dissolve the employment relationship and award a severance payment.
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