The Dismissal Protection Act (Kundigungschutzgesetz) helps you “buy” you some time before the actual dismissal.
In case of dismissal (see 1.) you have to see if the dismissal protection act applies to your situation (see 2.). If it applies you have to find out which is your “dysmissal type” (see 3.). Based on that you can file a lawsuit if you need. Once filed the employer has to choose one of the 3 reasons, going through the 3 options. The employer must fire you for the right reason, otherwise the dismissal is invalid. The court hearing is meant to find an agreement (3-5weeks) and even in case one goes thorugh all the trial until the ruling the scenario is either to get the job back in the company or to be fired with a money compensation (abfindung, up to 12-18months salary).
IMPORTANT: Legal costs are always covered by each part. Unions or legal insurance can “protect” you from legal costs.
These cases are always protected against dismissal:
- Pregnancy: grants dismissal protection (also after dismissal), dismissal is procrastinated ca 14months
- maternity/paternity leave: 12 MONTHS
- Being work council members: 5years. If there’s no council, the candidates or the first to activate (for this reason: in order to be prepared to elect a council one should hel meetings OUTSIDE the working places)
- officially severely (50+%) disabled, employer has to ask authorities before dismissing
- other: apprentiship/azubi, only after probezeit
- during emergency in family (weeks leave according to pflegezeitgesetz)
1) General rules for dismissal
Must be in written form (no email, sms, fax) and hand signed.
Must phisically reach the employee (“within sphere of power”= within closed personal phisical space) and employer must prove that it reached you.
Work council must be heard beforehand: employer motivates the dismissal and waits up to 1 week to find out any formal errors (even just wrong datas, names etc mines the validity of the dismissal).
Dismissal protection does not apply in severe case. Dismissal without notice can be done within 2 weeks from the act (severe cases, ex: violence)
2) Prerequisites for dismissal protection:
– Be employed for 6+ months = probezeit. For fixed term contract there’s no more probezeit, is still valid every renewal (Important: Fixed term contracts can be prolonged only 3 times in 2 years).
– The company has 10+ fulltime employees (or 20+ partime) in the estamblishment (ALL workers included)
– The dismissal lawsuit is filed within 3 weeks after dismiss receival (!!)
3) If dismissal protection applies:
3 different kind of dismissal (not mentioned in the dismissal letter, but to the work council and the court), these require different procedures to go trough (and options must be sorted out)
3a) Reason of performance (Free will, Behaviour)
3b) Reason in the person (not controllable feature, usually sickness)
3c) Operational reasons (economic reason)
Neglet of contractual duty (es: stealing, punctuality… any broke of trust )
Dismissal must be “last resort” (usually you need a notice of the mistake, a written warning or Abmahnung that mentions exactly what’s the wrong doing). You cannot be fired for that thing of the warning.
Case of limited balance of interest. Bond of trust built over time (es: been in the same company for long time. Es: Emily and Kaiser, 2010).
In case of negative prognosis for the future (= deduct from the past how the future will be. ex: from your absence in the past one can deduct your sickness). To counter with your’s doctor witnessy in front of the court.
Absence causes trouble at workplace. To counter with showing that you could be substituted: long/planned sickness.
Full balance of interest (personal situations:kids, seniority, debts…).
Positions fall away. Company shows evidence of redundancy or shows the scenario that motivates it
In these case no other employment options in the establishment are valued. Who’s dismissed is decided by “social selection” (= weaker is protected)
Sometimes it implies a money compensation (even without a lawsuit you can still bargain for it).