Sources of regulation
German Labour
Law originates from several sources: German Constitution and European treaty
law, as well as German and European legislation and jurisdiction.
Despite
ongoing attempts of unification of German labour codification,[1] there is no unified labour code.
To the contrary, labour law provisions are distributed over various codices,
thirty of them alone dealing with contracts labour law.[2] The
main general rules governing statutory protection against dismissal are
entrenched in the Civil Code (CC, Bürgerliches Gesetzbuch)[3] ,
particularly §§ 611-630, and the Protection Against Dismissal
Act (PADA, Kündigungsschutzgesetz).[4]
Moreover,
labour court jurisdiction exercised by the Labour Courts (Arbeitsgerichte),
State Labour Courts (Landesarbeitsgerichte) and the Federal
Labour Court[5] (Bundesarbeitsgericht) plays an important role not only in
application and interpretation of the law, but also in its further development,
resulting in numerous legal institutions deriving from judicial decisions.[6]
Additionally
and increasingly so, German labour law is influenced by EU-Regulations
and Directives, and by case law of the European Court of Justice.[7]
Scope of legislation
In general,
German labour law is divided into two sub-categories, individual and collective
labour law. For the purpose of this overview on termination of employment,
emphasis will be put on individual labour law.
Scope
of Individual Labour Law
As the name
indicates, individual labour law governs individual contractual relations
between single employers on the one and their single employees on the other
hand. In this context, individual labour law sets up certain minimum requirements
which safeguard a standard of protection considered obligatory under German
legislation.
Such requirements
can be found in, inter alia, the Federal Holidays Act (Bundesurlaubsgesetz)[8] and the Continuation of Pay
Act (Entgeltfortzahlungsgesetz)[9] entitling an employee to continuation
of payment (sick pay) for up to six weeks of illness, and the aforementioned
PADA. Depending on circumstance, the PADA may be supplemented by the Maternity
Protection Act (Mutterschutzgesetz)[10] and
the Severely Disabled Persons Act (Schwerbehindertengesetz) now
included in the Social Code IX (Sozialgesetzbuch IX)[11] – to name just two examples.
Notwithstanding
the regulations of the PADA, see § 13 (3) PADA, the preconditions for limiting
the term of an employment contract and the legal consequences of an invalid
term limitation are governed by the Part-Time and Fixed-Term Employment
Act (Teilzeit- und Befristungsgesetz).[12]
Acts aiming
at the guarantee of minimum standards are compulsory and cannot be superseded
by individual contracts unless in favour of the employee. Other Acts may
be altered only trough collective agreements.[13]
Scope
of Collective Labour Law
The freedom
of association (trade unions and employers’ orgnaisations) is guaranteed
by the German Constitution, Art. 9 (3) GC (Grundgesetz). Accordingly,
collective labour law governs relations between employees, employers and
their respective representative bodies. It can be subdivided into collective
bargaining law striving for uniform working conditions through industrial
disputes and the law on labour relations at the workplace — the level dealing
with co-determination and relations between employer and workforce in individual
establishments.
Collective agreements are governed by the Collective Agreements Act (Tarivertragsgesetz)[14] and
constitute the most important instrument for promoting their respective
members’ interests, thereby fulfilling three main functions: protection,
organization and preservation of industrial peace. The application of such
collective agreement is limited to the contracting parties, i.e. it applies
if an employer belongs to the employers’ federation, and his or her employee
is a member of the trade union which were involved in conclusion of the
agreement, or if the collective agreement has been declared generally applicable
under § 5 of the Collective Agreements Act. While a collective agreement
remains in force, employees are prohibited from going on strike.
The law
on labour relations at the workplace is regulated by the Works Constitution
Act (Betriebsverfassungsgesetz)[15] and aims at the creation of
co-operation between the trade unions and employers’ federations represented
at each workplace. As representative organ of the employees under § 1 Works
Constitution Act,[16] the works council (Betriebsrat)
exercises monitoring and participation rights (co-determination, rights
of information and consultation) in social welfare, personnel and economic
issues.[17]
Contracts of employment
While employment
of civil servants is governed by separate legislation, ordinary employment
contracts can range from full to part-time, long- to short term, probationary
and vocational contracts. All of these, however, have to meet certain
minimum requirements.
§ 14 (2)
of the Part-Time and Fixed-Term Employment Act allows for time-limited
employment without specific justification if the contract covers a term
shorter than two years; within this two-year frame, the contract can be
extended for up to three times.[18]
In any other
case, fixed-term employment can be justified by factual reasons (preliminary
character of work, seasonal work, employee replacing a regular employee
on sick leave) under § 14 (1). Discrimination against part-time and fixed-term
employees is unlawful in the absence of justification, § 4 Part-Time and
Fixed-Term Employment Act.
Termination of employment
The contract
of employment can be terminated in Germany, other than at the employer’s
initiative, by:[19]
- termination
with or without severance agreement by mutual consent, §§ 241, 305 CC;
- dissolution
of the contract by judgement on the ground of intolerability of continuation
of employment, §§ 9, 10, 13 PADA;
- termination
at the employee’s initiative pursuant to §§ 622 (1), 626 CC;
- expiry
of a fixed-term contract or fulfilment of a resolutory condition;
- contractual
retirement age being reached;
- death
of the employee;
- refusal
to recommence work after a court has ruled the termination to be invalid
and the employee has found new employment in the meantime, §§ 12, 16
PADA;
- court
refusal to substitute consent to preliminary recruitment without consent
of the works councils, §§ 99 (4), 100 (3) Works Constitution Act;
- annulment
of the contract at initiative of the employee due to voidability[20] (Anfechtbarkeit) for
mistake, § 119 CC, menace or fraudulent misrepresentation, § 123 CC of
the employment contract;
- unilateral
resignation by the employee from of a factual employment relation;
In case
of contractual cancellation or termination by the employee, neither the
PADA nor the Works Constitution Act are applicable.
Dismissal[21]
Similarly
to the employee, annulment for voidability of the employment contract can
be initiated by the employer, e.g. for fraudulent misrepresentation before
conclusion of the work contract. The general rules of voidability do however
only apply with future effect, i.e. in deviation from § 142 CC (effectiveness
ex tunc), it becomes effective ex nunc.[22] The employer also has the right
to resign unilaterally from of a factual employment relation. In this case,
the PADA does not apply.[23]
Additionally,
the employment relation can be terminated through lockout with terminating
effect (loesende Aussperrung) as reaction to a long lasting intensive
strike or to an illegal strike.[24]
Any termination
must not infringe §§ 138 CC (immorality), 242 CC (good faith), 611a CC
(gender equality), 612a CC (prohibition of sanctioning the legitimate exercise
of rights - Maβregelungsverbot) or § 9 Maternity Protection
Act.[25]
§ 138 CC
is subsidiary where special regulations such as §§ 611a, 612a CC exist
and only applies to extreme cases. A dismissal will be considered immoral
only if it drastically contravenes the moral values of a just and equitable
thinking person.[26]
§ 242 CC
only applies in cases of breach of good faith where the PADA does not contain
any more specific regulation, for example in cases of contradictory behaviour
on the side of the employer (venire contra factum proprium) when
the employer has not terminated the contract despite existence of legitimate
grounds to do so and has thereby given rise to the legitimate expectation
on the employee’s side that a dismissal for this specific reason will not
take place. A dismissal can also run counter good faith if it is exercised
recklessly with regard to time and location or if it is evidently arbitrary.[27]
The most
common reason for termination will however be either “ordinary” or “extraordinary”
dismissal which are governed by the PADA/ § 626 CC respectively.[28] They have to comply with specific
requirements which strictly limit the grounds on which termination of contract
can be lawfully based.
Ordinary
Dismissal under the PADA (ordentliche Kündigung)
Ordinary
dismissal has to comply with the requirements as prescribed by the PADA,
whose main purpose has traditionally been the preservation of employment.[29]
Its application
depends on the number of employees, § 23 PADA: It is not applicable to
establishments permanently employing five or less than five full-time employees
(not counting vocational trainees), and it is only partially applicable
to establishments employing ten or less employees (employees hired after
the 31.12.2003 do not count for that purpose). In ascertaining the number
of employees, part-time employees with a regular working week of not more
than 20 hours shall be counted as 0.5, and with not more than 30 hours
as 0.75 employees. Also, the PADA does not apply for employment relations
shorter than half a year, § 1 (1) PADA.
Under § 1
PADA, termination with notice is socially justified and legally effective
only if it is based on reasons relating to either the employee’s person,
conduct, or urgent operational business requirements which render continuation
of employment impossible. The employer carries the burden of proof for
showing the existence of these grounds.
A justification based on the employee’s person can be derived from
any personal feature inherent in the employee which renders
the employee inadequate for the job. Moreover, grounds for a negative prognosis,
impact on the establishment’s work performance and a lack of possibility
to continue employment are necessary conditions. Lastly, the employer’s
and the employee’s interests have to be weighed against each other and
this has to result in favour of termination.[30] Examples can be long-term illness
or frequent short illnesses. As dismissal is only a means of last resort,
it has to be measured from the standpoint of a responsible and sensible
employer.[31]
Conduct-related dismissal has to be based on the employee’s violation
of contractual obligations, negative prognosis, negative impact on the employment
relation and lack of possibility to continue employment. Again, a balancing exercise
between the contrary interests has to result in favour of termination. Additionally,
following the principle of proportionality, termination has to be preceded by
a warning (Abmahnung) issued within two weeks following misconduct, save
in instances where it would be unsuitable in improving the employee’s conduct
and/or intolerable for the employer (i.e. in the case of breach of confidence,
criminal offences committed against the employer). Generally, a warning will
be rather necessary if the employee’s performance is at stake than if there has
been a breach of trust.[32]
Urgent operational requirements can stem from the closing down of
the establishment, economisation and rationalisation and are only partially
subject to judicial scrutiny, e.g. for arbitrariness. The entrepreneurial
decision itself cannot be considered by a court. Thus, judicial review
will focus on the criteria of urgency and the question whether there has
been a loss/abolition of job which has rendered the employment obsolete. [33]
Moreover, the employer must undertake a social selection of the relevant
employees on the basis of length of employment, age, family support obligations
of the employee and severe disability, § 1 (3) PADA. Through this requirement
it is intended to protect employees who are less likely to find a new employment
or have social obligations to fulfil. Employees whose further employment
is crucial for the functioning of the establishment (Funktionstraeger)
do not have to be considered in the course of this selection process.[34] Regarding the possible non-compliance
with the requirements under § 1 (3) PADA, it is the employee who carries
the burden of proof.
No social
justification is possible in the case of § 1 (2) Clauses 2 and 3 PADA.[35]
Extraordinary
dismissal according to § 626 CC (auβerordentliche Kündigung)
Extraordinary
dismissal will take place in circumstances amounting to an “important reason”
which justifies summary termination, § 626 (2) CC. Such reason will be
considered a just cause if the employer cannot be reasonably expected to
continue the contractual relationship until its designated end or the end
of the regular period of notice.
Said unacceptability
is assessed objectively in the light of all circumstances and has to balance
the interests of both parties involved, § 626 (1) CC. This involves a two-step
test:
(a) Is the
reason abstractly appropriate as justification of extraordinary termination
and
(b) Does
it concretely suffice as justification of extraordinary termination in
the specific case?[36]
Extraordinary
dismissal will be justified in case of severe breaches of contract, e.g.
refusal to perform work, criminal offences and persistent violations of
work rules. While each case has to be individually decided, there is extensive
case law on the matter.[37]
However,
despite the provision’s title “termination without notice”, § 626 CC,
extraordinary termination may be subject to a period of notice based on
social factors (soziale Auslauffrist). In any case, the employer
has to clarify that he or she wishes to terminate the employment relation
on extraordinary grounds, i.e. without adherence to §§ 621, 622 CC.[38] An extraordinary dismissal
may however be reinterpreted as ordinary dismissal according to § 140 CC
if the hypothetical will covers such reinterpretation.[39]
While protection
against extraordinary dismissal is independent from the PADA as far as
the substantive grounds for dismissal are concerned, §§ 4, 7 PADA nevertheless
apply. This means that the absence of a challenge to the dismissal within
the prescribed time limit of three weeks (Praeklusionsfrist) results
in an irrebuttable legal presumption that the dismissal was lawful.
Specific
rules apply to disabled persons,[40] pregnant
women and parental leave,[41] members of the works council[42] and during compulsory military
or civilian service.[43]
Dismissal
in general
Apart from
these regulations, i.e. outside of the PADA’s scope of application, and
if dismissal is not based on § 626 CC, dismissals will only be considered
invalid according to §§ 138, 242 CC for arbitrariness or unreasonable grounds
of dismissal, e.g. violation of Art. 3 (3) GC. While certain social aspects will have to be taken
into account by the employer, this must not lead to an application of the
same standards as applicable under the PADA.[44]
Notice and prior procedural safeguards
The termination
of an employment relationship by means of an ordinary dismissal (with notice)
or an extraordinary dismissal (not necessarily, but mostly without notice)
must be made in writing to be effective (§ 623 CC).
Ordinary
dismissal
Ordinary
termination will become effective after a period of notice of at least
four weeks elapsing on the fifteenth or the end of the calendar month, § 622
CC. If continuous service in the course of employment amounts to more
than two years and the employee is over 25 years old, the period of notice
grows proportionally to the duration of employment: the statutory period
increases by one month on completion of the 5th, 8th, 10th, 12th and 15th
year of employment, with the maximum notice being seven months notice after
20 years of service, § 622 (2) CC.
A collective
agreement can extend or shorten the statutory periods of notice for the
employees, § 622 (4) CC. Individual contractual agreements can extend the
statutory periods of notice. However, the period of notice to be observed
by an employee may not be longer than the one which has to be observed
by the employer, § 622 (5), (6) CC.
Extraordinary
dismissal
While extraordinary
termination can become effective without a period of notice, it can also
be issued with a period of notice. In any case, however, notice has to
be given within two weeks after having obtained knowledge of the grounds
giving rise to the termination, § 626 (2) CC.
As an exception,
during a probationary period, which must not be longer than 6 months, employment
can be terminated at any time by giving two weeks notice, § 622 (3) CC.
Hearing
of the works council
Where there is a works council, a special procedure has to be followed
in accordance with § 102 Works Constitution Act, i.e. the employer has to inform
the works council of the grounds of termination[45] and the nature of termination
(ordinary or extraordinary) intended. A dismissal issued without such consultation
is invalid.
The works
council may file an objection against the dismissal within a prescribed
time limit, § 102 (2) Works Constitution Act.[46] However, neither the termination’s
effectiveness nor its validity depend on the Council’s approval. Nevertheless, the Council’s
objection may give rise to certain rights if the employee challenges the
dismissal before a Court, § 102 (5) Works Constitution Act.[47]
Severance pay
Entitlement
to severance pay can arise from a severance agreement accompanying a mutually
agreed upon termination contract, as a consequence of ordinary termination
due to urgent operational requirements (§ 1a PADA), or in the context of
a court ruling resulting in the dissolution of employment relation due
to intolerability of continuation (§§ 9, 10 PADA).
Severance
pay according to § 1a PADA has to be paid if the employee abstains from
initiating legal procedure. It is due after the 3-weeks time preclusion
period from § 4 PADA has ended.[48] The payment amounts to 0.5
monthly salary per year of employment.
Under §§ 9,
10 PADA, a court can mandate severance payment if termination has been
invalid but continuation of employment is nevertheless intolerable for
either party involved. In this case, the employment relation can be dissolved
if there is a corresponding application by either party. Severance payment
generally amounts to 12 months of salary, § 10 (1) PADA. Higher payments
will have to be granted depending on the employee’s age and duration of
employment, § 10 (2) PADA.
Avenues for redress
If the PADA
applies and an employee wishes to contest a dismissal on the grounds of
lack of social justification, or lack of important reason in case of extraordinary
termination, legal action must be brought before the competent local labour
court (Arbeitsgericht) within three weeks after receipt of written
notice, §§ 4, 7 PADA.[49] Such action has to seek declaration[50] that the employment contract
has not been terminated, 4 PADA.[51]
After expiration
of the three weeks preclusion period, the dismissal will irrevocably be
deemed valid and unchallengeable[52] unless
the legal action will be exceptionally admitted according to § 5 PADA.[53]
Where termination
falls outside the scope of the PADA, an application may successfully be
filed later than within three weeks after receipt of notice. It may however
be time-barred according to general provisions, §§ 195 et seqq. CC or estoppel by laches, § 242 CC.[54]
Inspired
by a policy of least impact possible on the employment relation, the Court
will first strive for an amicable settlement of the case and begin with
a conciliatory hearing, § 54 (1) Labour Court Act. If consensus cannot be reached through conciliatory hearing,
litigation will follow immediately thereafter, § 54 (4) Labour Court Act. Proceedings for protection against termination are to be prioritised, § 61a
Labour Court Act, e.g. conciliatory hearings are supposed to take place
within two weeks after the application has been filed.[55]
Also motivated
by protection of employees, costs for labour proceedings are relatively
low in order not to represent an obstacle to employees’ legal protection, § 42
(4) Court Costs Act (Gerichtskostengesetz).[56]
The Labour Court is composed of one presiding
judge and two honorary lay judges with equivalent legal powers. The lay
judges are nominated one half each among persons proposed by trade unions
and employers’ organisations respectively, §§ 6, 16, 20 Labour Court Act.
The court
of appeal is vested in the State Labour Courts, §§ 33 et seqq. Labour Court
Act with final appeal to the Federal Labour Court consisting of three judges
(one presiding, two assessors) and two honorary lay judges, §§ 40 et seqq.
Labour Court Act in conjunction with § 1 Labour Court Act.[57]
If the court finds the dismissal to be invalid due to lack of social
justification/important reason, it will declare the dismissal has been
invalid from the beginning. If the declaratory application has been filed
accordingly, it can also declare the continuation of employment relationship.[58]
While the case is pending, and upon request filed by the employee,
it can furthermore recognise the right to entitlement to continuation of
employment (Weiterbeschaeftigungsanspruch) until the matter has
been decided - either according to § 102 (5) Works Constitution Act, if
the works council has opposed dismissal in due time and the employee has
filed a complaint under the PADA, or in case the dismissal is evidently
invalid, or after the dismissal has been declared invalid by the court
of first instance.[59] The legal basis for continuation
of employment stems from §§ 611, 613 CC in conjunction with § 242 CC and
Artt. 1, 2 GC protecting the employee’s individual rights.[60]
Moreover, if application for dissolution has been filed, the Court
may also dissolve the employment relations and mandate severance payment
(see above).
Further information
[1] See, inter
alia, a project initiated by the Bertelsmann Foundation to unify German
Labour law on http://www.bertelsmann-stiftung.de/cps/rde/xchg/SID-0A000F0A-DF5C1E50/bst/hs.xsl/prj_5036_5045.htm.
Current developments can be followed up on the Ministry for Labour and
Social Security’s official webpage, http://www.bmas.bund.de/BMAS/Navigation/Arbeitsrecht/gesetze.html,
or http://www.aus-portal.de/aktuell/gesetze/01/index_683.htm.
[2] For an overview of some
of the most important ones see http://bundesrecht.juris.de/bundesrecht//BMA_index.html or http://www.rechtsrat.ws/arbeitsrecht/gesetze.htm.
In German, a comprehensive text book is the looseleaf-collection by Nipperdey,
Hans. C., Arbeitsrecht, C.H. Beck, Munich 2005.
[3] For an
English, but unfortunately incomplete, version from 2002, see http://www.iuscomp.org/gla/; for the most
recent German version see http://dejure.org/gesetze/BGB.
[4] While many sources, inter
alia, www.dewsbery.de/Glossar/gesetz.html, www.cjc.ca/archives/uro/glossary/glossary-de-en.htm prefer
translation into English as “Employment Protection Act”, the more literal
translation prevents from confusion with the Arbeitsplatzschutzgesetz which
literally translates “Employment Protection Act”, see also the translation
suggested in Office for Official Publications of the European Communities,
European Employment and Industrial Relations Glossary: Germany, Sweet and
Maxwell, London 1992, p. 207 Note 478. For German full text see Nipperdey,
supra note 3, Text No. 152 or http://bundesrecht.juris.
de/kschg/; an English translation of the Kündigungsschutzgesetz can
be found in: Business Transactions in Germany, published by Dennis Campbell
and Christian Campbell; founded by Dr. Bernd Rüster, looseleaf-collection
in four folders folder 2, App. 29 A, C.H. Beck, Munich in co-operation with Matthew
Bender, New York, USA, 1995ff.
[5] Official Webpage both in
German and English on http://www.bundesarbeitsgericht.de/ or http://www.bundesarbeitsgericht.de/
allgemein/englisch/ navgation_englisch.htm respectively.
[6] Such as, e.g., the legal
institutes of „operational usage“ (betriebliche
Uebung) and the principle of equality in labour law (arbeitsrechtlicher
Gleichbehandlungrundsatz).
[7] For cases by the European
Court of Justice on labour law see http://www.jurawelt.com/gerichtsurteile/sonstige/arbeitsrecht/eugh/.
[8] ILO-translation: Federal
Act on holidays, see Nipperdey, supra note 3, Text No.134.
[9] See Nipperdey, supra
note 3, Text No. 215.
[10] Ibid, Text No. 400 or Bundesgesetzblatt,
Part I, 2002-07-02, No. 43, pp. 2318-2324.
[11] See Nipperdey, supra
note 3, Text No.698.
[12] See Nipperdey, ibid, Text
No. 80; Bundesgesetzblatt, Part I, 2000-12-28, No. 59, pp. 1966-1970 or http://www.gesetze-im-internet.de/tzbfg/.
Most of the other Acts can be found in German through http://bundesrecht.juris.de
/index.html.
[13] On the hierarchy of norms
and legal instruments see Hromadka/Machmann, Arbeitsrecht, Volume 1, 2nd
edition, Springer, Berlin Heidelberg New York 2002, § 2 Note 62ff.
[14] For the German text see
http://bundesrecht.juris.de/tvg/BJNR700550949.html.
[15] An English translation
of the Betriebsverfassungsgesetz as of 1972 can be found in: Business
Transactions in Germany, supra, note 5, as well as in: „Legislative Series",
published by the International Labour Office, Geneva 1972 in co-determination
in the Federal Republic of Germany BMA, Ref. Presse und Öffentlichkeitsarbeit,
Bonn 1980; and in: Betriebsverfassungsgesetz/Labour-Management Relations
Act, translated and with an introduction by Martin Peltzer and Charles
E. Stewart Fritz, 4th edition, Knapp Verlag, Frankfurt am Main 1995.
[16] A works council can be
elected in establishments employing 5 or more employees, if at least three
of them are passively eligible.
[17] See §§ 74 ff Works Constitution
Act.
[18] For newly founded businesses,
the time limit is up to four years, see § 14 (2a). While, similarly, § 14
(3) does not require justification if the employee is over 58 years old
(52 years from the 31.12.2006 onward), the European Court of Justice has
ruled such age barrier as a criterion for justification to be unconstitutional,
see EuGH v. 22.11.2005 - Rs C-144/04, ZIP 2005, 2171 - Mangold/Helm on http://
curia.eu.int/ jurisp/cgi-bin/form.pl?lang =de&Submit =Suchen &alldocs=alldocs&docj
=docj&docop=docop&docor =docor&docjo= docjo &numaff=&datefs=&datefe=&nomusue
l=&domaine =&mots=mangold+helm&resmax=100.
[19] See Hromadka/Machmann,
supra note 14, § 10 Note 1-35.
[20] See Office for Official
Publications of the European Communities, European Employment and Industrial
Relations Glossary: Germany, Sweet and Maxwell, London 1992. p.
26 Note 22.
[21] While there is, inter alia,
also dismissal with option of altered conditions of employment (Aenderungskuendigung),
partial termination of certain conditions of employment, mass termination,
see Hromadka/Machmann, supra note 14, § 10 Notes 38-41, this overview will
focus on full termination.
[22] Ibid, § 5 Note 167, 143ff, § 10
Note 23.
[23] Ibid, § 10 Note 24.
[24] Ibid, § 10 Note 26.
[25] Termination
of contract is prohibited while the employee is pregnant and until 4 moths
after accouchement.
[26] The German formula used
to express this standard is: “Anstandsgefuehl aller billig und gerecht
Denkenden.” Examples where this standard is violated are: dismissal
for non-acceptance of sexual offers, out of revenge, for homosexuality,
see Hromadka/Machmann, supra note 14, § 10 Notes 70-72.
[27] Ibid, Note 73.
[28] This differentiation is
a specific feature of German legal terminology; see also Office for Official
Publications of the European Communities, European Employment and Industrial
Relations Glossary: Germany, Sweet and Maxwell, London 1992, p. 64 Note 121.
[29] Hoyningen-Huene/Linck,
Kommentar zum Kuendigungsschutzgesetz, 13th edition, C.H. Beck, Munich
2002, § 1 Note 4: Bestandsschutz- und kein Abfindungsgesetz („Preservation,
not Compensation Act“).
[30] BAG (Federal Labour Court) NZA 1997, 761ff.
[31] For details see v. Hoyningen-Huene/Linck,
supra note 27, § 1 Note 175-269.
[32] See supra, ibid, Notes
271-362a.
[33] See supra, ibid, Notes
363-430.
[34] See supra, ibid, Notes
431-494c.
[35] If termination contravenes
a directive under § 95 of the Works Constitution Act, if it is possible
to continue employment in the establishment or another establishment belonging
to the same enterprise, and if the works council has objected termination
in writing within the notice term defined in § 102 Works Constitution.
Similar criteria apply to public enterprises.
[36] Hromadka/Machmann, supra
note 14, § 10 Note 108ff.
[37] Palandt/Weidenkaff, Kommentar
zum Buergerlichen Gesetzbuch (Commentary on the CC), 65th edition,
C.H. Beck, Munich 2006, § 626 Note 42ff; dismissal can also be based on
grounds of suspicion and third party pressure.
[38] Becker/ Hillebrecht (co-founders)/Fischermeier,
Gemeinschaftskommentar zum Kündigungsschutzgesetz (KR) und zu sonstigen
kündigungsschutzrechtlichen Vorschriften, 7th edition, Luchterhand, Neuwied
2004, § 626 Note 29, 30.
[39] Hoyningen-Huene/Linck,
supra note 27, § 13 Note 42ff; BAG (Federal Labour Court) NZA 1988,
129. In such case, however, it is necessary that the works council has
also – e.g. alternatively - been consulted on
the termination as an ordinary one.
[40] Dismissal of severely disabled
persons either with or without notice requires prior consent of the integration
office (§ 85 Social Code IX (Sozialgesetzbuch IX).
[41] Dismissal during pregnancy
and four months thereafter is prohibited by law, § 9 Maternity Protection
Act. This also applies if the employer has been unaware of the pregnancy
at the time of notice but is informed within two weeks thereafter. The
prohibition extends to maternity/parental leave under § 18 Federal Parental
Leave Compensation/Benefit (Bundeserziehungsgeldgesetz), see Nipperdey,
supra note 3, Text No. 401, unless declared exceptionally valid by the
highest state authority or an appointee thereof.
[42] Members of work councils
cannot be dismissed unless there is an important ground for instant termination
and consent has been given according to § 103 works Constitution Act or
has been substituted by court ruling, § 15 PADA. This protection extends
to one year after end of work council membership.
[43] Notwithstanding dismissal
due to important reason under § 626 CC, dismissal during military or civilian
service is prohibited by § 2 of the Employment Protection Act (Arbeitsplatzschutzgesetz),
with protection starting upon receipt of conscription notice.
[44] Hromadka/Machmann, supra
note 14, § 10 Note 73a: Outside of the PADA, fundamental rights of the
employer deriving from Articles 12, 2 German Constitution (Grundgesetz)
generally prevail.
[45] However, these grounds
only have to be communicated from the employer’s point of view and reflect
his/her subjective determination.
[46] The time limit for ordinary
termination is one week, for extraordinary termination three days.
[47] Under operation of this
paragraph, the employee is entitled to continuation of employment during
the pending of legal procedures.
[48] Unlike
other time periods, this is no procedural time limit but a matter of substantiation
(Begründetheit), i.e. an action will still be admissible, it will
however be considered unfounded. The German terminus technicus for this
is “materielle Präklusionsfrist.”
[49] The labour court has original
jurisdiction, § 2 Labour Court Act (Arbeitsgerichtsgesetz)
in all legal matters arising from employment relations.
[50] Such application for declaratory
judgment (Feststellungsklage) has to comply with § 256 Civil Proceedings
Act (Zivilprozessordnung).
[51] See above. If such notice
has not been issued in writing, the preclusion period will not commence.
[52] As indicated above, the
time period prescribed by §§ 4,7 PADA is not a
procedural time limit. Thus, the action will still be admissible, but will
be considered unfounded due to irrebuttable presumption of validity of
termination.
[53] This will be possible if
the employer has been unable to comply with the time limit despite due
diligence.
[54] Often, 2-3 months will
be considered as a time limit; see Becker/ Hillebrecht (co-founders)/Friedrich,
supra note 36, § 13 KSchG (PADA) Note 304ff; Becker/ Hillebrecht (co-founders)/Rost,
ibid, § 7 KSchG (PADA) Note 35ff.
[55] Due to lack of capacities,
however, most legal proceedings will not be able to comply with this time
frame.
[56] With a maximum value in
litigation of three months salary and severance pay not to be included.
[57] See §§ 8, 64, 72 Labour Court Act.
[58] Hromadka/Machmann,
supra note 14, § 10 Note 312ff and on applications possible (punktuell,
allgemein, Schleppnetzantraege) and Becker/ Hillebrecht (co-founders)/Friedrich,
supra note 36, § 4 KSchG (PADA) Note 225ff. .
[59] Acknowledged
firstly in BAG (Federal Labour Court) NZA 1985, 702; see also Hromadka/Machmann,
supra note 14, § 10 Note 350ff.
[60] Hromadka/Machmann, supra
note 14, § 10 note 354 referring to the Federal Labour Courts’ jurisdiction
but also quoting dissenting opinion in parts of literature.
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