Representation after termination
Termination received from the employer? And now?
A notice of termination issued by an employer never feels good – so it is often associated with professional and financial anxiety. But even in such a situation, the first thing to do is to keep a cool head and proceed in a structured manner. This ultimately still allows you to get the best out of the difficult situation.
I will go over with you the individual aspects that need to be considered after you receive your notice.
First, a quick overview:
- Do not sign anything!
- Observe the deadline for an action for protection against dismissal! (Attention! Action must be taken quickly).
- Report immediately to the employment agency!
- Have the effectiveness of the termination reviewed and, if necessary, file an action for protection against dismissal!
In the following, I would like to go into more detail on the aforementioned points and show why their observance is so important.
To 1.: Do not sign anything!
Often, the notice of termination is handed over in the company. The employee is then in a state of shock. Emotions are running high.
This type of surprise creates an atmosphere of desperation, fear or excessive demands on the part of the employer, from which the employer hopes for a better starting situation. It is suggested to the employee that signing a termination agreement will facilitate the settlement and that this is to the advantage of both parties.
However, caution is advised when signing such a termination agreement: While the employer can buy his way out of the risk of an action against unfair dismissal by signing a termination agreement, the employee may lose his legal entitlement to unemployment benefits. This is because by signing the termination agreement, the employee “participates in the termination of the employment relationship.” Furthermore, further action against the termination is made considerably more difficult.
To prevent these risks, you should not sign anything on the spot and always ask for time to think things over – if necessary, to also obtain legal advice.
Remember that there is no obligation to sign anything. An employer who pushes for immediate signing is certainly acting unseriously and wants to catch you off guard.
To 2: Observe deadline for action against unfair dismissal (period for filing suit)!
If you have received a notice of termination, you must quickly decide whether you want to take action against this by filing an action for protection against dismissal. An action must be brought against any written notice of termination within three weeks of receipt of the notice (sections 4, 13 KSchG). So action must be taken quickly!
If no action for protection against dismissal is brought within the three-week period, the dismissal shall be deemed to be effective, irrespective of whether the dismissal was lawful or not.
If the three-week time limit for filing a lawsuit is missed, there is no longer any possibility of taking action against the employer or extracting severance pay, with very few exceptions.
If you decide to sue, I strongly recommend that you do not sue without legal assistance. Even if you are well informed, there are still some rules that are not known to everyone. A lawyer specializing in labor law knows which points are negotiable and what is important. He knows the tricks of the trade for employers and can help you get the best possible benefits.
To 3: Report to the employment agency!
After receiving the notice, you must register as a jobseeker within three days. Immediately after the end of the notice period, you must then register as unemployed. If you do not do this, you may face a suspension period for unemployment benefits or a delay in payment. Please note here that a phone call is not sufficient to arrange a personal appointment. The report must be made in person on site.
To 4: Have the effectiveness of the termination checked!
Some employees are severely affected by a dismissal, others are not so unhappy about it. It’s possible that you haven’t really been feeling well lately anyway and have thought about terminating your employment relationship yourself. However, regardless of how you feel, it is advisable to have the termination reviewed for its effectiveness and, if necessary, to file an action for protection against dismissal.
After a thorough examination of the prerequisites, a realistic assessment of any litigation risks can be made. Even if the goal of an action for protection against dismissal as envisaged by law should be continued employment, the reality often looks different. Very often, therefore, the action is brought primarily with the aim of obtaining a settlement.
Even if this is not always the case, an action for protection against dismissal usually increases the chance of receiving a higher severance payment. It should be noted, however, that the amount of the settlement is ultimately based on any litigation risks.
Last but not least, the issuance of a good reference or the postponement of the termination date of the employment relationship are regular results of an action for protection against dismissal.
For the termination to be effective, it must be checked for the following sources of error:
a) Formal defects of the termination
As a unilateral declaration of intent, the termination of an employment contract must be in writing. It must therefore be hand-signed by an authorized signatory and the original must be sent to the employee. Electronic form (e.g. as fax or e-mail) is just as insufficient as verbal notice of termination. If the notice of termination does not meet the mandatory formal requirement, it is already invalid, even void, for this reason.
The managing director of a GmbH (limited liability company) or the HR manager, for example, is authorized to sign. If, on the other hand, the notice is signed by a person whose authority to sign is not obvious, the notice must be accompanied by an original power of attorney. If the original power of attorney is not enclosed with the letter of termination, the termination can be rejected immediately with reference to the lack of power of attorney. But here, too, it is important to act quickly. Immediate means that the notice can only be rejected within a few days of receipt.
If there is a works council, it must be consulted before any notice of termination is given. If the works council is not consulted or not consulted properly, the termination is also invalid for this reason. Even if the works council’s objection cannot ultimately prevent a termination, the objection is not without effect. If the works council has duly objected to the termination in due time and the employee has brought an action for protection against dismissal, the employer must, at the employee’s request, continue to employ the employee after the expiry of the notice period with unchanged working conditions until the legal conclusion of the legal dispute.
If the employer has given notice to a large number of employees in addition to you, a so-called mass dismissal notice may be required from the Employment Agency. In this respect, too, errors can lead to invalid termination.
b) Is there a reason for termination?
If the employer has issued an extraordinary notice of termination, he always needs an “important reason” for this, which makes it seem unreasonableforhim to continue the employment relationship even until the expiry of the notice period (§ 626 BGB). There must therefore be a really serious reason to justify extraordinary termination or termination without notice.
If the employer has issued an ordinary notice of termination – i.e. in compliance with the notice period – it must first be examined whether the Dismissal Protection Act is applicable.
This is the case if the company employs more than ten people and the employment relationship lasts longer than six months.
During the probationary period and in so-called “small businesses“, the Dismissal Protection Act is therefore not applicable and the employer can, in principle, terminate the employment relationship by issuing a written notice of termination even without a corresponding reason for termination.
If, on the other hand, the Dismissal Protection Act is applicable, the employer needs a reason for termination in order to be able to terminate the employment relationship.
The German Dismissal Protection Act (Kündigungsschutzgesetz ) provides for three reasons for termination – namely, behavioral, personal and operational reasons for termination.
Although the employer does not have to state the reason for termination in the termination letter, objectively there must be one that can be reviewed in court. If there is no reason for termination, the termination is invalid.
Depending on the reason for termination, its requirements must be met.
It is important to note that the employer is initially required to present and prove the existence of the prerequisites for the reason for termination. This is an important aspect in order to successfully conduct proceedings for protection against dismissal.
In this respect, too, it can only be advised to call upon the expertise of a lawyer specializing in the field of employment law. The devil is in the details. An attorney’s experience makes it easier to keep track of the many details and keep abreast of the regularly changing and evolving case law in the area.
c) Special protection against dismissal
In addition to the protection against dismissal provided by the German Dismissal Protection Act, certain groups of employees enjoy more extensive special protection against dismissal. The special protection against dismissal is aimed at employees who are particularly worthy of protection. Above all, employees with a severely disabled status or equivalent, expectant mothers(pregnant women) as well as mothers and fathers on parental leave enjoy this special protection against dismissal. In addition, works councils, representatives of the severely disabled and data protection officers each have special protection against dismissal. These groups of employees may only be dismissed by the employer in exceptional cases and subject to further conditions.
If you have received a notice of termination, you should not waste precious time and seek legal advice immediately. As a competent contact person with years of union experience, I am at your disposal. Together with you, I will check whether the termination is effective or whether an action should be brought against it.
Please contact me by e-mail or phone. In a personal meeting appointment we can discuss the details and further procedure.
