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Parent Category: Labor Legalities

Created on Monday, 24 November 2008 06:39

Last Updated on Thursday, 28 February 2013 16:57

Termination: General Issues

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...

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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, itwould 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 one week. 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. Sure. Your termination is subject to the same rules as your employer is. The rule states that the probation period may last at most 6 months, the period of notification must be at least two weeks and the cancellation letter in writing. An electronic dismissal is invalid (§623 BGB)! It must be in writing.
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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 a notice of termination, the first thing you have to do is check out, if your case falls under the Law on Protection against Terminations (Kündigungsschutzgesetz). If so, that will rule in your case. If your case will not fall under this law 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 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. You are required to sue your employer within three weeks following the receipt of a termination letter. ..
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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 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 direkt 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,
• or 2.severely infringing the employment contract, when the employee ought to understand that such behavior will lead to be noticed,
• 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 period or granted vacation 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

Authors: AvE / FS