Initially, the termination of a work contract comes as a shock to the employee concerned. Often, his/her first reaction is determined by anxiety, fear, anger and sadness. However, those who take sensible action will master the situation satisfactorily.
The right to a severance payment exists only in the special case where, as a result of a major change within the company, the works council has enforced a severance scheme. Contrary to widespread belief, there is no further entitlement to such a payment. That is the reason why the Labour Court does not determine the amount of compensation, it only decides if the dismissal is effective, i.e. if the working relationship subsists. If a severance payment is made, it depends greatly on your lawyer’s negotiating skills and how far the dismissal is likely to stand up to legal examination.
If the working contract has existed for longer than six months and if the employer has more than ten employees, he may only terminate the contract for reasons relating to the employee, to his behaviour, or for operational reasons. In discussions with his client, the lawyer must try to establish if there are sufficient grounds for the dismissal. The lawyer’s assessment is decisive in selecting the appropriate strategic approach. What notice periods apply? Maybe your dismissal can be delayed?
Even when there are grounds for the dismissal, the employer must observe a period of notice. Depending on the length of service, this is between two weeks during probation and seven months after a period of employment of 20 years. Furthermore, the working contract of the collective agreement can provide a longer period of notice. A cancellation without notice is only possible, when the grounds for dismissal are so serious that it would be unacceptable for the employer to continue employing the worker.
Terminations, including those declared by the worker, must always be made in written form. Notifications by fax and email, or orally declared terminations are invalid. Furthermore, an authorized person, such as the managing director or the HR manager, must sign the termination notice. If another person who is not authorized has signed the termination notice without having added a written authorization issued by the authorised representative, the dismissal can be refused.
The invalidity of a notice of termination by means of legal action before the labour court must be asserted within a period of three weeks beginning on receipt of the notice of termination: If you miss it, the termination is effective and the working contract is terminated.
I would be pleased to advise you extensively in all other employment law matters.