The employer gives notice: typical errors in form and notice period

If errors occur during a notice of termination, this is ineffective. If you know the typical sources of error, you can avoid them or use them to your advantage. Particularly important is the notice period. Check which deadline applies in your case and how it is calculated. If you want to file an action for protection against dismissal, you have to keep an eye on the 3-week period for filing an action.

I. Profit from formal errors

An employer’s notice of termination terminates the employment relationship unilaterally and usually against your will. Formalities and deadlines must be observed and, if necessary, certain bodies must be involved (z.B. an existing works council must be consulted). Special regulations also apply to groups of employees who are particularly worthy of protection, such as pregnant women or severely disabled persons.

Will these Formalities not observed, this has legal consequences from which you can benefit as an employee. In most cases, the termination is then invalid and must be repeated. Your employment relationship continues for the time being, your employer has to employ you and you continue to get your money. However, the termination becomes effective if you do not file an action for protection against dismissal with the labor court within three weeks of receipt.

Therefore, go through the following sections point by point to check whether the notice of termination may be invalid and how best to respond to a formal or deadline error.

If you want to terminate your employment relationship yourself, you as an employee must also observe the formalities and deadlines of a Dismissal of employees comply. Indeed, a mistake can have consequences for you as well.

II. It depends on the type of termination

Depending on the type of termination, as an affected employee, you have several formalities to consider. If in doubt, seek advice from a specialist attorney for labor law or the legal advice centers of the trade unions.

2.1. The normal case – ordinary termination

In the proper termination in addition to the formalities between the receipt of the notice of termination and the end of the employment relationship is the Notice period comply. In addition, ordinary dismissal is subject to the limitations of general and special protection against dismissal.

  • If the notice period is not observed, i.e. if notice is given with too short a period of notice on a specific date (e.g.B. to the 31.12.2010), you must file an action for protection against dismissal within the 3-week period after receipt of the notice of termination. Otherwise, the termination becomes effective on the stated, albeit incorrect, date (§ 7 KSchG; BAG, ruling dated 1.9.2010, 5 AZR 700/09 ). But: Can the notice be interpreted to mean that the correct notice period should apply in all cases (z.B: We will terminate your employment with due notice on the 31st day of employment. 12. 2010, alternatively at the next permissible date. ), you can still assert the non-compliance with the notice period in court outside the 3-week complaint period of § 4 KSchG ( BAG, judgment dated 6.7.2006, 2 AZR 215/05, NZA 2006 S. 1405 ).

  • If the approval of the competent authority is lacking (z.B. in the event of dismissal of a severely disabled person, a pregnant woman or an employee on parental leave) or if the bodies to be included (e.g.B. works council or personnel council) is not properly or sufficiently involved, the termination is invalid. However, it can be repeated if necessary. If you wish to invoke the invalidity of the termination, you must file an action for protection against dismissal in good time.

2.2. The exception – extraordinary termination

The extraordinary notice of termination can be pronounced if an good cause which makes it unreasonable for one party to the contract to observe the ordinary period of notice (z.B. after criminal acts) or if ordinary termination is excluded at all (z.B. by labor/collective bargaining agreement).

Extraordinary notice of termination can only be given within two weeks from knowledge of the reason for termination.

If the consent of the competent authority is missing (z.B. in the case of termination of a severely disabled person), the termination is invalid. As an extraordinary termination, it cannot usually be repeated because the 2-week period from knowledge of the reason for termination (Section 626 para. 2 BGB) cannot be complied with. Nevertheless, you must file an action for protection against dismissal.

In addition, there are Special sources of error in the case of extraordinary termination (z.B. if there is no good cause or if the 2-week period from knowledge of the reason for termination has not been observed).

2.3. The termination of a fixed-term employment contract

In principle, a fixed-term employment relationship ends on expiry of the agreed period or when the purpose is achieved. It can – before the expiry of the notice period – only ordinary notice of termination if this is agreed in an individual contract or in the applicable collective agreement (§ 15 Para. 3 TzBfG). If there is no such agreement, the ordinary termination is invalid. It may also not be effectively repeated. In this case, too, an action for protection against dismissal must be brought ( BAG, judgment of 22 December 2006).7.2010, 6 AZR 480/09, NZA 2010 S. 1142 ).

The extraordinary termination of a fixed-term employment relationship is possible at any time under the conditions of § 626 of the German Civil Code (BGB) .

2.4. The partial termination of individual contractual provisions

Unilateral termination or amendment of individual provisions of the employment contract is generally not permitted. Permissible, however, are, for example, clauses that extend the right of direction, opening clauses for works agreements, fixed-term individual terms of employment or contractually agreed revocation clauses that allow the employer to revoke promised benefits under certain circumstances.

A Reservation of revocation but is only effective, if the reason for revocation is specifically stated (z.B. a negative operating result, below-average work performance of the employee). Only in this way can the employee recognize what, if any, is in store for him/her . In addition, the revocation may not affect more than 25-30% of the total earnings, and may not fall below the collectively agreed wage ( BAG, judgment of 10.10.2006, 5 AZR 721/05, NZA 2007 S. 87 ).

2.5. The notice of termination with notice of change

In the case of a notice of termination with changes, the employment contract is terminated in its entirety and at the same time you are offered continuation of the employment relationship under changed conditions.

For further information on the legal requirements for dismissal with notice of a change, see How employers do everything right when dismissing with notice of change.

III. What are the sources of error in the formalities?

3.1. Only the right person may terminate

Only the respective contractual partners are entitled to terminate the agreement

This means that only the company or the person with whom you have concluded the employment contract may terminate. However, their employment relationship may have been transferred to another legal entity as a result of a transfer of operations pursuant to Section 613a of the German Civil Code (BGB) or as a result of a change of legal form. Then the new company may also give notice.

Whether the correct notice of termination has been given depends further on the Legal form of the employer (z.B. partnership, stock corporation, GmbH). The persons who are authorized to represent the company in legal transactions are also authorized to give notice of termination. Often only several persons can terminate jointly (so-called joint representation).

If the Incorrect terminated, the notice of termination cannot terminate the employment relationship – it comes to nothing . However, the entitled person may reject the notice approve subsequently. However, in the case of extraordinary termination with retroactive effect, this can only be done within the 2-week period of § 626 para. 2 BGB ( BAG, judgment of 26.3.1986, 7 AZR 585/84, NJW 1987 S. 1038 ).

If the notice of termination is approved by the rightful claimant, the period for bringing an action under § 4 KSchG does not begin until receipt of the approval ( BAG, ruling dated 26.3.2009, 2 AZR 403/07, NZA 2009 S. 1146 ).

If you object to the lack of authorization to terminate immediately after receipt of the notice, approval is no longer possible. The notice of termination must then be repeated by the authorized person.

Termination by authorized third parties

The owner, managing director or board of directors may also informally authorize third parties to give notice (§ 164 BGB). Frequently, this authorization is subject to a Comprehensive power of attorney covered (z.B. procuration, general power of attorney, power of attorney to act). Joint representation is also common here. However, lawyers representing the employer in the lawsuit do not have a power of attorney to give notice under a normal power of attorney for litigation.

Distinguish between the following possible Sources of error:

If no power of attorney before, the rules apply as with the notice by a non-entitled person.

If – despite existing power of attorney no power of attorney document in the original submitted (z.B. only a copy or a fax), you can reject the notice of termination on the grounds that a power of attorney document was not submitted, immediately reject (§ 174 BGB). For this you have approx. one week time. If rejected in time, the termination is invalid: it cannot be approved, but must be repeated.

However, you may not reject the notice if you are aware of the authorization (even without a document). This is the case if the notice of termination is signed by a plant and personnel department manager, but not by a personnel administrator.

3.2. Termination always in writing only

Written form is required for the termination of all employment relationships, for all types of termination and for both contracting parties to required by law (§ 623 BGB). This means that the notice of termination must be handwritten or typed and Must be provided with the handwritten name signature of the person authorized to terminate the contract. Electronic form is expressly excluded.

  • Terminations by telegram, fax, e-mail or SMS are void (§ 125 BGB).

  • Signatures by typewriter, automatic typewriter, stamp or facsimile are just as insufficient as a scanned signature.

  • Hand signs (so-called paraphs), abbreviations of names and scribbles that cannot be individualized as signatures are not signatures of names; however, the signature does not have to be legible ( BGH, ruling of 10.7.1997, IX ZR 24/97, NZA 1997 S. 3380 ).

If the written form not complied with, the termination is invalid. In this case, you do not even have to file a complaint with the labor court within three weeks (§ 4 KSchG). To avoid the objection of Forfeiture In order to exclude the possibility of a legal challenge, you should invoke the invalidity of the termination due to a lack of form vis-à-vis the employer within the notice period – ideally in writing.

3.3. Content-related pitfalls of the termination letter

The term termination does not have to be

However, it must unambiguously the will to terminate the employment relationship is expressed unilaterally want to terminate for the future. Invoking other termination options is not enough (z.B. rescission, fixed term or termination agreement).

If no employer notice before or remains unclear whether notice of termination was given at all the employment relationship will not be terminated.

  • The employer declares in writing that he accepts a notice of termination previously given orally by you. In this case, there is no employer’s notice of termination.

  • The employer informs you in writing that a fixed-term employment relationship will not be extended. If the time limit is invalid and the employment relationship therefore continues, this declaration is not a notice of termination despite the expressed intention to terminate.

  • The employer gives written notice of termination for operational reasons. At the same time, however, he declares that the termination will become invalid if the company receives a follow-up order. The notice of termination is invalid because it is not sufficiently clear and definite ( BAG, judgment of 15 December 2006).3.2001, 2 AZR 705/99, NZA 2001 S. 1070 ).

There is no need for action here up to the limit of forfeiture. In case of doubt, you should nevertheless file an action for protection against dismissal with the labor court within three weeks.

A termination date does not have to be specified

The termination letter does not have to contain a termination date. Termination on the next permissible date is possible.

If it is not clear whether termination without notice or termination with notice is meant, this ambiguity is at the expense of the person giving notice. In case of doubt, the termination shall have the effect of an ordinary termination.

Reasons for termination need not be stated

In principle, there is no right to know the reasons for termination in the termination letter. Hereof there are legal exceptions:

The termination of a trainee after the probationary period must be made in writing, stating the reasons for termination (Sec. 22 (2)). 3 BBiG).

According to § 9 para. 3 MuSchG, the notice of termination of a pregnant woman declared admissible by way of exception must state the admissible reason for termination.

If the reason for termination is only communicated verbally in these cases, the termination is invalid and you must take legal action to protect against termination.

Irrespective of this, you can, after giving notice extraordinary notice of termination require that the reason for termination be communicated to you in writing without delay (§ 626 para. 2 BGB).

You can also request this in the case of an ordinary notice of termination. This follows from the duty of care of the employer. If proceedings for protection against dismissal are instituted in accordance with Section 4 of the German Unfair Dismissal Act (KSchG), the employer must state the reasons for termination at this point at the latest so that the court can review the social justification.

3.4. No notice without receipt

The date of receipt of the notice of termination is decisive

The notice of termination becomes effective at the earliest upon receipt. A notice of termination can therefore not terminate the employment relationship retroactively. The time of receipt of the notice of termination is connecting factor for further legal consequences, for example, the beginning of the notice period, the period for filing an action pursuant to § 4 KSchG, the observance of the period pursuant to § 626 para. 2 BGB as well as for the assessment of the general and special protection against dismissal.

  • If the letter of termination not handed over personally If the notice of termination is given to a pregnant woman, it must have reached the recipient’s sphere of influence in this way (z.B. house mailbox, post office box) that the latter could take note of it under ordinary circumstances.

  • If you have as an employee as an address in the post If the date of receipt of the notice of termination is stated, the notice of termination is received as soon as you would normally have had the opportunity to pick up the letter.

  • Also the Handover of the termination letter to a person authorized to receive (z.B. family members, domestic servants, room landlords) effects its receipt.

Who must prove receipt of the notice of termination in the proceedings?

The burden of proof for the time of receipt of the notice of termination is borne by the Sender. Often, a messenger is used to ensure the delivery of the notice of termination or. the deposit of the notice in the mailbox can be witnessed later.

Also a so-called Acknowledgement of receipt, So an explanation of the recipient to have received the notice is usual. Transport by registered letter with advice of receipt and by registered letter with recorded delivery are also considered to be relatively safe. notice of termination can also be given by Bailiffs have the letter delivered (§ 132 BGB).

What problems arise with the receipt of the notice of termination?

If the notice of termination is only posted at a time of day in the house mailbox If the notice of termination is posted on a day on which it can usually no longer be expected to be emptied, the notice of termination will not be received until following day to.

In case of doubt, you should not rely on the later receipt of the notice of termination for filing an action for protection against unfair dismissal. Therefore, file an action for protection against dismissal in good time.

Even during a Absence due to vacation, during a stay at a health resort or hospital or during the serving of a imprisonment If the notice of termination is received by posting in the house mailbox. This also applies if the employer knows where you are.

If you miss the 3-week deadline for filing an action for protection against dismissal due to absence from the place of work, you can apply for subsequent admission of the action for protection against dismissal (§ 5 KSchG).

The Notice of termination by registered mail is delivered when it is placed in the recipient’s mailbox or post office box. The letter carrier records the time and place of posting on the delivery receipt. The posting and delivery receipts for registered letters sent by post have a strong indicative effect for the actual receipt of the item ( LAG Cologne, ruling dated 14 December 2006).8.2009, 10 Sa 84/09 ).

You can Shake the circumstantial effect, by making plausible a later receipt than that specified in the delivery receipt ( LAG Berlin-Brandenburg, ruling dated 1 January 2009).3.2007, 10 Sa 1945/06 ). The burden of proof for earlier receipt then remains with the employer.

The Termination by handover registered letter is not received until it is handed over to the recipient or to a person authorized to receive it according to the customary understanding of the situation. This includes family members, cohabitants, landlords and domestic servants, but not a neighbor.

If the sender has hand delivery to the addressee chosen, the registered mail must be given to the recipient himself or to a person with special postal authority.

The place and time of delivery are also recorded here. The handover registered letter is also with advice of receipt possible. In this case, the sender automatically receives proof of the place and time of delivery.

If no person authorized to receive the notice is encountered and only a Notification slip placed in the mailbox, the letter of dismissal is not received until the registered letter is picked up at the post office. It is not received if the registered mail is returned after the expiration of the retention period.

If the recipient deliberately prevents the notice from reaching him/her (so-called Obstruction of access), he shall be treated as if he had received the notice of termination.

  • The recipient refuses acceptance of the termination letter without cause. The notice of termination is nevertheless deemed to have been received, unless there was a valid reason for the refusal (z.B. the recipient would have had to pay additional postage for the underpaid letter).

    Refusal to accept shall also be deemed to be if the employee instructs his family members to reject incoming mail of the employer. However, if these messengers refuse to accept the letter without instructions from the employee, the recipient does not have to accept responsibility for this ( BAG, ruling of 11.11.1992, 2 AZR 328/92, NZA 1993 S. 259 ).

  • An employee who expect a notice of termination must (z.B. If the employer knows that an approval procedure is in progress at the Integration Office), the employer may not, depending on the circumstances, invoke delayed receipt of the termination letter if he did not pick it up at the postal service or did not pick it up promptly even though he received a notification letter from the postal service ( BAG, judgment of 7.11.2002, 2 AZR 475/01, NZA 2003 S. 719 ).

    He needs to be treated as if he received notice at the normal time. This is the time at which he would normally have picked up the registered mail (z.B. in the case of a notice posted on Fridays regularly on Mondays). Otherwise, the employee does not have to collect the document deposited for him at the post office ( BAG, judgment of 3.11.1976, NJW 1977 S. 194 ).

  • The employee frustrated in breach of trust the receipt of a letter of termination if during the entire duration of the employment relationship the legal representative only communicates an address at which he cannot be contacted. This applies in particular if he had to reckon with the receipt of a notice of termination within the next few days and communicates the wrong address again (z.B. in a certificate of incapacity for work; BAG, judgment of 22.9.2005, 2 AZR 366/04, NZA 2006 S. 204 ).

  • In the case of a Change of residence you must inform your employer of the new address immediately. If you fail to do so, the time at which the letter would have been received at the original address is decisive for receipt. This applies regardless of whether you have submitted a forwarding request ( BAG, ruling dated 18.2.1977, 2 AZR 770/75, DB 1977 S. 1194 ).

  • As an employee, you do not need to make arrangements for receiving letters as long as you do not have to expect receipt of a notice of termination. If no mailbox available and if the letter of termination cannot be slipped under the door of the apartment, the employer must arrange for access by other means – for example, through the bailiff – unless he has given you notice of termination in prospect.

A letter of termination written in German shall be received in accordance with general principles, even if the recipient does not speak German or illiterate is. The recipient is not granted a reasonable period of time to translate or take note of the notice.

In the case of delivery to a not or only limited legally competent the notice of termination only becomes effective upon receipt by the legal representative (§ 131 BGB). The letter of termination handed over to a minor trainee is thus not received until the trainee passes it on to his or her legal representative.

IV. The notice period must be observed

While the ordinary If the notice of termination becomes effective at the earliest with the receipt of the notice of termination, the employment relationship actually ends only with Expiry of the notice period. The period of notice to be observed is determined by the employment contract, a relevant collective bargaining agreement or the law.

The extraordinary Notice of termination terminates the employment relationship without notice or, exceptionally, only after expiry of an expiration period.

4.1. If the statutory notice periods apply

Does your employment contract or the collective agreement relevant to you refer to the legal notice periods referred, the notice periods of the BGB are meant with it. These also apply if nothing has been contractually agreed on the question of the notice period and no relevant collective agreement regulates the notice periods. Please note the following:

basic notice period: The employment relationship of an employee may from both sides with a period of four weeks to the 15. of the following month or to the end of the month (§ 622 para. 1 BGB).

Extended notice periods: Employers must – depending on the employee’s length of service or employment with the company – observe extended notice periods (Sec. 622 para. 2 BGB).

Staggered statutory periods of notice according to company affiliation 1

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