The Limited Times

Now you can see non-English news...

Employment law: the biggest mistakes in dismissal

2020-10-26T06:56:46.306Z


"The youngest have to go first" or "After the third warning it's over anyway": There are many myths surrounding the end of an employment relationship. An explanation in four points.


Icon: enlarge

If you pack your things at work, there are a few things to consider beforehand

Photo: Klaus Vedfelt / Digital Vision / Getty Images

1. "Nobody can throw you out without a warning."

The rumor that after three warnings the termination is automatically in the mailbox persists - but it's nonsense.

"There is neither the strict number three, nor is there an automatic mechanism to which the termination would be tied," says André Niedostadek, 50, professor of business law, labor law and social law at the Harz University of Applied Sciences Warning goes, rather relates to the area of ​​protection against dismissal.

Icon: enlarge

André Niedostadek, Professor of Business Law, Labor Law and Social Law at the Harz University of Applied Sciences

Photo: Harzbeat

If a company has ten or fewer employees, the protection against dismissal does not apply.

The number ten is not necessarily linked to the number of people who work in the company.

If some of them are employed part-time, they are taken into account proportionally when determining the number of employees.

Therefore, the team can also be larger than ten people;

However, there is no protection against dismissal.

It is therefore important to note: In smaller companies, it is easier for you to be terminated per se - and usually without any warning. 

In general, the Dismissal Protection Act distinguishes between three types of dismissals: In the case of

operational dismissal

, the employment relationship is terminated because the employer has to relocate to another city, restructure the company or make savings due to financial bottlenecks.

"Especially in times of Corona, we could face redundancies for operational reasons," says Niedostadek. In this case, it is not the employee himself who gives the reason for the employment relationship to be terminated, but for example a possible imbalance in the company.

"An employment contract can only be terminated in writing - not by e-mail and not by fax."

André Niedostadek

A reason for a

personal termination

would be, for example, an illness that makes the job impossible for the employee - even if he or she wanted to.

"Covid-19 would probably not be sufficient here, as an illness from the virus is hopefully only temporary," says Niedostadek.



More important in the event of a warning is the

behavior-related termination

, which can be pronounced due to serious misconduct by the employee; for example if the employee is permanently late to the office. Before the boss can resign due to misconduct in the job, a warning is mandatory. The warning works a little like the yellow card in football, for example, which means a warning there .



the principle that must be protected from dismissal, which is pronounced for a misdemeanor, warned, that is true. "Three warnings but you will rarely get," says Niedostadek.

In exceptional cases, termination without notice can also be given without a warning - for example because of a theft in the company.

However, it always depends on the individual case.

When it comes to whether you can be terminated for a gross offense if it happens outside of the workplace, professional basketball player Joshiko Saibou is causing a stir: the 30-year-old was terminated without notice by his employer, Telekom Baskets Bonn.

The reason: He was accused of "violating the requirements of the current employment contract as a professional athlete" after taking part in a demonstration in Berlin against the state measures in the corona crisis.

Saibou's friend, long jumper Alexandra Wester, was also present at the demo.

Saibou is currently still in legal dispute with the Telekom Baskets - outcome open.

Whereby Niedostadek sees the chances for Saibou as not bad at all.

Because what employees do privately, according to the lawyer, is initially nothing to do with employers.  

2. "Terminate? Sure, that can also be done verbally"

You know it from films.

In the heat of the moment, one of them throws at the other: "I quit" - and I'm gone forever. A myth from the cinema. "The termination of an employment contract can only be done in writing - not by e-mail and not by fax” says Niedostadek.

At first glance, it seems quite clear what is often more complicated in practice.

Let's take the following example: The employee gives notice orally.

The employer agrees.

Shortly afterwards, the employee comes to his senses and thinks: "About the termination, I didn't want that at all." Who is right?

The regional labor court of Rhineland-Palatinate dealt with this question a few years ago (8 Sa 318/11).

The then plaintiff had worked in a hairdressing salon since mid-2007.

During a phone call with the employer in March 2010, she repeatedly dismissed the contract without notice.

In the same telephone conversation, she also confirmed this termination to another person.

About two weeks later, the operator of the hairdressing salon gave notice to the employees.

The employee filed a lawsuit against this termination.

The employer stated that the employment relationship had ended because the plaintiff had previously given notice on the phone.

The employee argued that she could not remember a dismissal, she only said on the phone that she could temporarily not do her job due to illness.

The woman argued that the termination was ineffective because it was not in writing.

The state labor court dismissed the employee's action in accordance with the lower court.

It submitted that, as an exception, an employee must allow himself to be adhered to verbally if he repeats it several times and seriously.



Nevertheless, the principle remains: You must cancel in writing - and not by fax or e-mail.

3. "Termination for operational reasons? It always affects the youngest."

Every reason for termination has its special requirements;

In the case of behavior-related termination, as already described above, it is necessary, for example, for the employer to issue a warning beforehand.

In the case of operational dismissals, on the other hand, what is known as social selection plays a special role.

It is regulated in the Dismissal Protection Act.

It says there that an operational dismissal can be ineffective if certain aspects are not or not sufficiently taken into account in the social selection.



Different aspects are taken into account when making a social selection: such as length of service, age or a possible physical handicap.

The idea behind social selection is that people who are disadvantaged in the labor market because of their advanced age or physical impairment enjoy special protection.

Employers should be careful about social choices in order to save themselves problems.

"When it comes to social selection, there are so many more things that matter than just age," says Niedostadek. The law knows another gateway for problems here: the boss can exclude "top performers" from the social selection.

"However, employers must be able to convincingly prove whether someone is really indispensable for the company," says Niedostadek.

4. "No reason for termination? Then it is ineffective"

This myth is fairly easy to refute.

"As we have seen, a termination often needs a reason, but the employer does not have to justify it," says Niedostadek. There are exceptions here, for example, during maternity leave or during training. If the employee terminates, he does not need a reason anyway to specify.

Although the employer is not obliged to give reasons for the termination, the employees can find out what the termination is due to.

This is not contractually standardized, but results from the employer's secondary obligations.



The tip here: While dismissal is also effective, without notice, ". However ask for a justification this obligation, the employer," says Niedostadek If the employer of these obligations by, there may a claim for damages..



While such claims were in Usually not easy to enforce, but there is nothing in labor law that does not exist, said Niedostadek, referring to a decision by the Giessen Labor Court, which awarded an employee, a deputy works council chairman, compensation of 20,000 euros. The reason: the employer caused reasons for termination to be provoked or simply invented entirely.

Icon: The mirror

Source: spiegel

All business articles on 2020-10-26

You may like

Life/Entertain 2024-02-15T10:50:10.676Z
Life/Entertain 2024-03-12T14:43:24.130Z

Trends 24h

Latest

© Communities 2019 - Privacy

The information on this site is from external sources that are not under our control.
The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.