Arbeitsrecht – JSRA Rechtsanwälte

May 25, 2017March 24, 2021

Can a termination agreement be challenged if the employee has been pressured?

Unfortunately, the situation is not uncommon, a surprising interview takes place, the employee is called into a room where the employer is with a witness, and the employee is accused of criminal behavior and given the choice of either the employment contract by mutual agreement to be dissolved immediately, or to be given notice of termination (without notice). If the employee signs in such a pressure situation, the question arises as to how long he can take to think about this signature and take action against the termination agreement.

What is the legal situation and what can you do
An employment relationship is terminated by the termination agreement. This termination can only take place through a unilateral termination or, as here, through a bilateral agreement. It is therefore necessary to get rid of this agreement „“. Legally, this is done by contesting the agreement. A challenge is admissible if the employee has made a mistake in signing the true facts (because the employer may have misrepresented or incompletely stated them), or was deceived or maliciously threatened by the employer (by the employer knowingly believing the employee). , there would be a sensitive evil in the form of dismissal if he does not agree to the cancellation). The contestation is regulated by law in §§ 119 ff BGB.

Prerequisites for a challenge according to case law
The Cologne Higher Labor Court has in its Decision of October 19, 2016 on 11 Sa 114/16 now defines the criteria to be met:

The appeal must be made within 1 year, § 124 I BGB.
The appeal period begins a. at the point in time at which the deception is discovered, in the case of a threat to end the predicament, at the latest within 10 years of the declaration of intent, §§ 124 II, III BGB.
The employer must have fraudulently deceived or unlawfully threatened the employee, § 123 BGB, which is specified as follows in relation to labor law:

If the employer has to assume that a dismissal would very probably not be effective, then he must not hold out the prospect of it being effective and build up a pressure situation (cf. also Federal Labor Court of November 28, 2007 – 6 AZR 1108/06 –).
If the employer only has the suspicion that the employee has seriously violated the employment contract (e.g. by committing a criminal offence), then the suspicion must already be so well established that the event (which is why the employer has the suspicion) cannot also have occurred in another way and way could have happened. Mere assumptions are not sufficient (cf. also Federal Labor Court of February 12, 2015 – 6 AZR 845/13 – and Federal Labor Court of May 24, 2012 – 2 AZR 206/11 –).
If the employer did not know / did not want to know about special reasons that would entitle him to termination / no further employment (e.g. the omission of the material reason for the representation, § 14 Para. 1 Sentence 2 No. 3 TzBfG) against better knowledge (e.g. if the already informed the represented employee that he is not coming back and that another „representation“ is therefore necessary) and thereby gives the employer the impression that he „has no chance anyway“ and it is better to sign a termination agreement (cf. Federal Labor Court of April 29, 2015 – 7 AZR 310/13 –).

Important to note
All decisions are made on a case-by-case basis. It is therefore important that you can determine and then present the facts that are to be evaluated. It is the employee's burden to prove that he was deceived. In the first step, the employee must therefore be able to state what the trigger for his signature was, ie what concrete disadvantages the employer promised him. This is not easy in many cases, so you should definitely seek professional advice.

May 21, 2017March 24, 2021

Dismissal Protection Act – when is this applicable?

Employees are (among other things) Dismissal Protection Act (KSchG) against unlawful dismissals. But when is it actually applicable? When does protection against dismissal apply?

First you have to ask yourself why this is important at all. The Dismissal Protection Act regulates mandatory behavior that must be observed in the event of a dismissal. If the employer does not take this into account, the termination is ineffective. Whether this is the case or not will be decided by a court as part of an action for protection against unfair dismissal. This action for protection against dismissal must be brought by the employee. To do this, the employee must comply with a deadline (the so-called legal deadline in dismissal protection proceedings). This period is usually 3 weeks from the employee's receipt of the notice of termination. If this deadline is missed, the employee can no longer invoke the ineffectiveness of the termination for a reason under the Protection against Unfair Dismissal Act (but also for other reasons!).

Workers on ships / airplanes
The KSchG (with regard to the protection of employees against unjustified dismissals) is generally applicable here. The deadlines for filing an action for protection against unfair dismissal will be adjusted to the requirements. As a rule, this should be collected within 3 weeks of going ashore; an extension of this period to up to 6 months is possible under the statutory conditions (see in detail § 24 KSchG). The waiting period of 6 months must be fulfilled.

All other employees (companies under public and private law)
The applicability of the Dismissal Protection Act (with regard to the protection of employees against unjustified dismissals) depends (in the first step) on the number of employees in the company, then (in the second step) on the start of the respective employment relationship and finally (in the third step) of fulfilling the waiting time.

According to which regulations is the number of employees determined?
It counts to that extent Not the headcount, but the regular number of hours worked by the employee. Trainees do not count at all, full-time employees (35 / 38.5 / 40 hours per week) count 1, part-time employees (up to 30 hours per week) count 0.75, part-time employees (up to 20 hours per week) count 0.5.

Companies with up to 5 employees
The protection of employees against unjustified dismissals under the provisions of the Dismissal Protection Act does not apply.
Companies with 6 to 10 employees
The protection of employees against unjustified dismissals under the provisions of the Dismissal Protection Act applies if the employment relationship began before January 1st, 2004 and at the time when the notice of termination was given at least 5 employees were still employed who were employed on December 31st, 2003.
Businesses with more than 10 employees
The protection of employees against unjustified dismissals under the provisions of the Dismissal Protection Act applies. In addition, the employment relationship must have existed for 6 months (waiting period).

Even if it looks different: The examination of the question of whether the law on protection against dismissal applies in individual cases can be complex. You should definitely seek expert advice here, because something important is at stake, namely your employment relationship.

May 15, 2017March 24, 2021

Does an employment contract have to be in writing?

The question often arises as to what happens if an employment contract is not concluded in writing or if the employee „simply starts“ to work. Did the employment relationship come about at all?

In principle, freedom of contract applies in Germany, which means not only that you can (within the legal limits) regulate what you want, but also how you want. In principle, an employment contract does not require a formal form, i.e. even if it is only concluded verbally or by implied action (exception: a collective agreement can regulate in individual cases that the employment contract must be concluded in writing), § 105 I 1 GewO (trade regulations).

The NachwG (proof law) stipulates that the employer must put down the main points of the concluded contract in writing within 1 month of the start of the employment relationship„“ Has. The minutes must contain the following points:

1. the name and address of the contracting parties,

2. the start date of the employment relationship,
3. in the case of fixed-term employment relationships: the foreseeable duration of the employment relationship,
4. the place of work or, if the employee is not only supposed to work at one specific place of work, an indication that the employee can be employed at different places,
5. a brief characterization or description of the work to be performed by the employee,
6. the composition and the amount of the wages, including surcharges, allowances, premiums and special payments as well as other components of the wages and their due date,
7. the agreed working hours,
8. the duration of annual vacation leave,
9. the deadlines for terminating the employment relationship,
10. A general reference to the collective agreements, company or service agreements that apply to the employment relationship.

What happens if this information is not recorded or no employment contract has been concluded in writing? According to the NachwG, it is not punishable if the employer fails to lay down the essential conditions of the employment relationship. Failure to do so can, however, a.) lead to a reversal of the burden of proof, for example in protection against dismissal or payment proceedings by the employee against the employer or b.) the employer not fulfilling an obligation to provide evidence under other laws. Because: The NachwG pursues the goal that, especially in the event that a written employment contract does not (yet) exist, the essential points of the employment contract can be made available to all parties promptly at the beginning of the employment relationship „readable“ are defined.

Additional note: For the calculation of the period for the existence of the employment relationship (important, for example, for the calculation of the probationary period, the applicability of the law on protection against unfair dismissal, etc.), the time of the „actual and practical start“ of the employment relationship is decisive and not necessarily the day that is stated in an employment contract as the start of the employment relationship.