It often happens in everyday working life that conflicts escalate at the workplace or that employees, for various reasons, unconsciously or even under certain circumstances consciously endanger the success of the company or business relationships. If it is not possible to resolve such conflicts amicably, separation from the employee is usually the best solution. However, it becomes much more problematic if termination is the last resort and the conflict between employee and employer must be resolved by an action for protection against dismissal before the labor court.
A dismissal protection lawsuit before the labor court can drag on for many months and is nothing but a costly, time and money intensive burden for the employer. According to the Federal Statistical Office, an average of seven months elapse between the commencement of proceedings and the court's decision. It is also not uncommon for lawsuits to last a whole year or longer.
Because of this, it is important for employers, entrepreneurs, to know how he can prevent the dismissal protection process, proactively, by a goal-oriented procedure or in the best case even completely prevent. Because exclusively only with the correct process tactics most procedures can be accomplished early and for the employer economically.
The action for protection against dismissal pursuant to the Dismissal Protection Act (KSchG) is filed if the employee wishes to defend himself against termination by the employer. This serves the legal review of a received, served notice of termination. In this case, the aim of this action against dismissal is usually either the retention of the employment relationship or even an appropriate severance payment. This is a one-time payment by the employer to the employee to compensate him for the loss of his job and the associated loss of income.
Employers affected by the dismissal protection process should in no case rely on a legal support and representation, even if in the worst case it results in the employer having to bear the costs. This is because mere individual incorrect or careless expressions within the correspondence can immediately change the course of the dismissal protection proceedings to the detriment and disadvantage of the employer.
In addition, it is advisable that a person versed in employment law Lawyer is entrusted with such a mandate, since only such a mandate basically brings with it the greatest experience in proceedings under the law on protection against dismissal and it will thus be easier to bundle and prepare the relevant information and documents for the subsequent pleadings, as well as to act within the process strategically and, above all, profitably in the interest of the employer, the client, in a wise manner.
Dismissal proceedings before the Labor Court follow a fixed schedule, Section 61a of the Labor Court Act (ArbGG). The case only comes to trial if the dismissed employee brings an action for protection against dismissal. He can only do this if he applies to the labor court within three weeks of the termination for a declaration that the employment relationship has not been terminated by the termination and gives at least brief reasons for this.
In the course of the dismissal protection proceedings, the defendant employer is then given the opportunity to now deal with the complaint in writing, ideally with the help of a Lawyer. In any case, it should be avoided to include too many points in the letter. After all, if the employee files a clearly structured action for protection against dismissal and the employer himself responds to this in an unclear manner, this makes a bad impression.
Therefore, the plan should be refrained from executing every little thing in detail. Instead, the focus should be on the essential issues. Thus, if the termination was due to behavioral reasons, operational reasons should not be mentioned in addition and vice versa. Otherwise, this type of statement only offers unnecessary attack surfaces. Instead, the response must make it clear why the employer had no choice but to part with the employee in question for very specific reasons.
This is followed by a conciliation hearing before the labor court within two weeks of the filing of the action for protection against dismissal, which is intended to bring about an amicable settlement between the two sides. The aim is therefore to end the legal dispute at this stage and to reach an amicable settlement without further hearings. Under no circumstances will a final decision be made on the validity of the termination or a judgment pronounced at the conciliation hearing.
The chairperson listens to the arguments of both parties and gives an initial assessment or explains the risks of the dismissal protection proceedings with the employer and the employee. In this way, he or she shows approximately what the chances of success of the further proceedings might be. However, the court does not make any binding determination about the further course and outcome of the legal dispute. It is often the case that a settlement is already reached at the hearing and the proceedings are already terminated at this point.
A common mistake made by employers is inadequate preparation for the conciliation hearing. Good reasons for termination should also be presented as quickly as possible. This reduces the chances that the judge will propose a very high severance payment as a settlement. Preparation also includes the employer already being able to say in court what the terminated employee has earned gross, what is in the reference and how many vacation days are still outstanding. All of this plays a role in the question of what severance pay the employer can offer.
Conduct during the conciliation hearing: First of all, keep calm. Neither expressions of displeasure nor a display of satisfaction make a good impression. Under no circumstances should statements be interrupted. Even if the court has completely misunderstood a point and presents it in this way, nothing should be rushed.
Instead, it is advisable to note everything down first and only ask for some comments to be added after the remarks have been made. In addition, it is important to know that it ultimately depends on the personal impression of the judge in which direction the court increases the pressure.
If no amicable agreement can be reached, the court will schedule a chamber hearing several months after the hearing, which will be the actual hearing. After approximately three to six months, the oral hearing takes place before the presiding judge and two other honorary judges. Beforehand, the parties had the opportunity to comment in detail on the matter and present evidence within certain time limits.
During the hearing, all aspects of the termination will be legally discussed. If the dismissal is for reasons of conduct, witnesses may also be summoned and questioned. In addition, the court may demand that further documents be submitted. This gives the parties another opportunity to reach an amicable agreement. If this goal is not achieved, the court pronounces its binding judgment. This concludes the proceedings for the time being.
However, if one of the parties does not agree with the outcome of the action for protection against dismissal, it may appeal to the Regional Labor Court within one month of receipt of the judgment. In principle, an appeal to the Federal Labor Court is also possible as a final legal remedy. However, only very few cases are admitted for this purpose.
As explained above, filing an action for protection against dismissal by the employee always leads to a lot of effort and considerable costs, regardless of the outcome. Employers should therefore decide for themselves whether they want to take this route or try to reach an agreement with the other party. Ideally, however, an appointment should be made as soon as possible with a lawyer. Lawyer be agreed upon.
