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FAQ (Frequently Asked Questions)



How do I get a settlement?

What can I do against a written warning?

Am I entitled to a contract of indefinite duration after having several fixed-term contracts?

How do I request legal aid (Beratungshilfe, Prozesskostenhilfe)?

How much does an initial consultation with a lawyer cost?

What does the legal representation before the labour court cost?

What can I do about a termination of contract?

Do I profit from an unfair dismissal lawsuit?

 

FAQ (Frequently Asked Questions)


01
How do I get a settlement?

The lawsuit against wrongful dismissal must always be aimed at the ascertainment that the termination of the contract is socially unjustified, which then leads to continued employment.

Many dismissed employees no longer want to continue to actually work and would like to retire with a severance payment from the employment relationship. Since this usually is in the interest of the employer, who in cases of wrongful dismissal does not want his dismissed employee back, often a mutual agreement on severance pay can be achieved.

The amount of compensation usually depends on the risk of litigation.

With good chances of success for the employee, he will increase his demand. Instead, if the odds are in favour of the employer, he will be offering a correspondingly small amount of money. Therefore it is important to have a professional and realistic view on the chances of success. You can ask for our assessment as part of an initial consultation.

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02
What can I do against a written warning?

Warnings are a written reprimand, which must appoint a specific work duty violation. If it does not, the warning may usually is considered too vague and thus ineffective.
The warning shall be a clear signal, that the continuation of the employment relationship is jeopardized.

In case of recurrence of the duty violation, a written warning can lead to the termination of contract. However, I duty violations are rather marginal several warnings might be required before the employer is allowed to issue a dismissal.

The warning may be challenged in judicial action. The employer can be sued for removal of the warning from the personal file.

Also there is by law the possibility to make a counterstatement, which the employer has to put in the personnel file.

You can ask us to take legal action on your behalf or help in creating a counterstatement.

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03
Am I entitled to a contract of indefinite duration after having several fixed-term contracts?

It depends on many circumstances. Basically the TzBfG (part-time and temporary employment law) is designed so that employers can agree on time limits up to two years, without having an objective reason. Within the period of two years, the fixed term employment relationship can be extended three times. The conditions of the employment relationship may not be changed along with the extension of the time limitation. After two years, the employer needs a specific objective reason to justify a further limitation.

Also, there are possible formal mistakes, that can lead to an invalidity of the time limitation. As an example, a time limitation of a work contract must always be agreed upon in writing, if this is not the case, it is invalid.  Another common mistake is to form a written contract only after the commencement of employment, which also leads to the invalidity of the time limitation. Continuation of work after the expiration date of the contract may also give you a claim on continued employment.

It is important that your lawsuit on continued employment meets a deadline of three weeks after the Expiration of the time limitation. This deadline is short and can not be delayed.

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04
How do I request legal aid (Beratungshilfe, Prozesskostenhilfe)?

If you are in need of a legal advice or need to send a letter of claims to your employer and cannot afford the costs yourself, you may apply for legal aid for a first consulting (Beratungshilfe) at the local district court. If you do not know which court is the proper court for you, ask us.

For a labour court proceeding, legal aid may also be applied in case of need. We can make such an application for you and, where necessary, are prepared to provide assistance in completing the application forms. The need for and granting of legal aid depends on the net disposable income. Payment obligations, rents, maintenance obligations, etc. are deducted from net disposable income generally.

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05
How much does an initial consultation with a lawyer cost?

An initial consultation with a lawyer will cost max. € 190.00 excl. a flat charge for expenses  max. € 20.00  and taxes, which comes to a total of  € 249.90 gross. Within an initial consultation can find out whether a judicial process makes sense. It may also serve to provide an assessment wether you can track your claims itself.

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06
What does the legal representation before the labour court cost?

In the first instance of a Labour Court proceeding, each party must bear its own costs. That means, that even if you win the case, you have to pay your lawyer yourself. The court costs however, have do be paid by the losing party. If you reach a mutual agreement in court, as it is often the case labour court proceedings, there are no court costs, however, another attorney fee.

In the second instance of a Labour Court proceeding (instance of appeal), all costs have to be paid for by the losing party.

The amount of the attorneys' fees is regulated by law and depends on the value of what is in dispute. Please just ask us for an estimation of the costs in your individual case.

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07
What can I do about a termination of contract?

Attention! If you receive a notice of termination and want to contest it in court, a lawsuit has to be filed within three weeks after receipt of such notice. If the notice is signed by a non-authorized person without proof of authorization, you have to respond even more quickly, because the notice must then be rejected as soon as possible.

Therefore, you should quickly make an appointment to discuss the matter, so that necessary actions can be taken in time.

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08
Do I profit from an unfair dismissal lawsuit?

For employment relationships which have been concluded since January 2004, the Employment Protection Act is valid only if more than ten workers are employed (excluding trainees and without consideration of the manager). Furthermore the Employment Protection Act will only apply, if the employment relationship has at the time of cancellation existed more than six months. The Employment Protection Act offers protection against contractual notice of dismissal. If a dismissal is socially unjustified, it will be declared invalid by the court.

If you are defending against a dismissal with immediate effect, success does not depend on the number of employees and length of employment relationship. The dismissal with immediate effect may therefore also successfully challenged in small businesses or in a period of employment lasting less than 6 months. Whether an important reason for extraordinary termination exists, must then be discussed in detail.

Also there is a special dismissal protection for those who are pregnant, are on maternity leave, are on parental leave or severely disabled or are protected for other reasons alike.

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 Kanzlei für Arbeitsrecht in Schöneberg Klaus Stähle