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Basic Information
Dismissal
Protection
a. Don´t miss the three week deadline
Anybody who is dismissed and wishes to appeal needs to act
quickly – within three weeks of receipt of written dismissal.
If the three week deadline is not met, it might still be
possible to appeal against dismissal. However, in this case the
chances of success are significantly diminished. In such cases,
approval for delayed action must be applied for, and the
application must be made within two weeks of the removal of the
obstacle that prevented an earlier appeal from being lodged.
Should the dismissal have been issued by an unauthorized person,
e.g. someone who is neither CEO nor head of HR, it can be
overturned. The appeal should be lodged immediately.
A direct appeal to the employer, whether via a complaint to the
works council or by a written submission to the management, does
not affect or extend the time limit for filing legal action.
We therefore encourage clients to make an appointment as quickly
as possible, so that all necessary steps may be taken in good
time.
b. Appealing against unfair dismissal
The chances of an appeal are significantly better with firms in
which 10 or more employees – excluding trainees and CEOs – are
employed. The other crucial aspect is that the period of
employment should have been at least six months at the time of
being given notice. These rules are laid down in the employment
protection act (KSchG).
For employees who have been with their employer since before
01.01.2004, employment protection rights may apply if the
company employs at least five people. The exact conditions need
to be checked in detail. In case the rights laid down in the
employment protection act are applicable, the dismissal can be
reviewed by the labour court with respect to social criteria.
Dismissal from smaller companies can be successfully appealed
against if deemed to be
extraordinarily
unfair, because the reasons for dismissal are insufficient or
even immoral. You can also take legal action against a dismissal
from a small firm, if you are dismissed without notice and with
no relevant justification.
According to the Federal Constitutional Court, long-serving
employees can appeal successfully if their dismissal contradicts
elementary principles such as good faith and the welfare state.
c. Severance payment
After a successful appeal employee and employer often have no
interest in continuing the work relationship, and so most unfair
dismissal lawsuits end in a financial settlement. Parties often
go to court just to negotiate financial terms.
A right to severance pay only exists if the employer has a
so-called “social plan” for redundancies and the dismissal is
made within that social plan, or if the employer has offered
severance pay in the notice of termination according to §1a
employment protection act.
Severance pay may also be due if a works council exists but has
not appropriately been involved, although a large number of
people have been made redundant. Also the court may set a
severance payment, if there are special reasons that mean that
continued employment is unacceptable for one of the parties.
The initial aim of an unfair dismissal claim may have been the
preservation of the employment relationship. But in the course
of negotiations the willingness of one or the other side to
compromise grows, especially when increasing costs and/or the
risk of losing the case influence decision-making.
The amount of compensation then depends on the chances of
success in court, the length of service, the financial situation
of the employer and, of course, the negotiation skills of the
parties involved.
d. Costs of dismissal protection suit
Each of the contending parties has to bear their own legal fees,
no matter what the outcome of the case. The court costs must be
paid by the unsuccessful party. The costs of appeals – including
legal costs of the other side – are paid by the losing party.
Legal protection insurance usually covers labour law issues.
Insurers generally pay legal costs and court fees, including
opponents’ legal costs if an appeal is lost. If the person
dismissed does not have their own legal insurance, the costs may
even be covered by the legal protection insurance of another
family member.
Should you not have legal insurance and lack sufficient
financial resources, you can apply for legal aid.
e. Tax treatment of legal costs
Legal costs that have to be paid (e.g. the fees for advice and
representation as well as court costs) as part of running a
business, be it as an employer, landlord, investor or to
generate other income covered by §22 of the income tax act, are
tax deductible business expenses.
 Kanzlei
für Arbeitsrecht in Schöneberg Klaus Stähle |
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