Employment disputes centre mainly on protection against dismissal, on employees enforcing claims for remuneration, and on employers enforcing claims for damages against members of their staff.
Even before you seek legal advice, you should bear the following in mind:
If an employee receives notice of dismissal from their employer, there is only one effective way to challenge it: a claim for protection against dismissal (Kündigungsschutzklage) must be filed with the labour court within three weeks of receiving the notice. Neither the involvement of the works council nor letters of protest to the employer can change this. Anyone who misses the three-week deadline generally has no further chance of preventing the employment relationship from ending.
Just as important for employees as the three-week time limit for challenging a dismissal are the forfeiture periods laid down in employment contracts or collective agreements, which apply when asserting claims for remuneration. These periods vary considerably from one collective agreement to another. In essence, they provide that all mutual claims arising from the employment relationship lapse unless they are asserted in writing within a specified period and, where applicable, unless legal action is also brought within a further period.
Attempts to enforce old payment claims only once the employment relationship has ended frequently fail because of these forfeiture periods. Every employee must therefore be aware that legitimate claims can be lost if they are not asserted promptly after they arise and, where necessary, pursued in court.
These forfeiture periods apply equally to employers, however, and claims for damages against employees often fail for this very reason. Where the collective agreement requires claims to be asserted in court, such claims must also be pursued swiftly by filing an action with the labour court – even if it would be possible initially to recover the damages by setting them off against the attachable portion of the employee’s salary.
There are also dangerous pitfalls for employers when giving notice of dismissal. Clumsy wording in the reasons given for a dismissal often cannot be remedied in subsequent dismissal protection proceedings. Our advice is therefore not to include any reasons in the letter of dismissal, whether the dismissal is with or without notice. Setting out the grounds for dismissal is better left to your lawyer in the dismissal protection proceedings.
Dismissal protection proceedings almost always involve a high financial risk for the employer: if the case is lost, salary must be paid retrospectively for many months even though the employee has not worked at all – a risk from which the employer can often escape only by paying a substantial severance payment. Every employer should therefore have at least a brief telephone conversation with their lawyer before giving notice, in order to clarify the prospects of the intended dismissal and what severance payments may have to be expected.
In the case of dismissal without notice, the employer must observe the statutory time limit for declaring the dismissal. An extraordinary dismissal without notice may only be based on grounds that have been known to the employer for no more than 14 days. Anyone who delays too long in declaring the dismissal therefore loses the right to dismiss. It is always better to declare a dismissal without notice immediately if there are grounds for it. It remains possible to agree with the employee at a later stage to continue the employment relationship and to withdraw the dismissal.
Particularly where a dismissal without notice is intended, however, legal advice should be obtained beforehand. As a rule, dismissal without notice is only permissible if the employee has previously received a formal warning (Abmahnung) for comparable conduct. There are only a few exceptions to this principle.
Wording a formal warning correctly is by no means child’s play. As with notices of dismissal, the only sound advice is to keep the wording brief and clear. Under no circumstances should a warning letter deal with several incidents: if just one of them turns out to be unfounded, the employee can demand that the entire warning be removed from their personnel file. Nor should warnings be worded too kindly or considerately. They must in every case contain a clear statement that any further incident comparable to the conduct complained of may result in dismissal without notice.