In Germany the relationship between employer and employee is characterised as a continuing obligation and therefore, besides a few exceptions, it needs an official termination of the working contract.
This assignment deals with the one-sided termination of a working contract by the employer and in particular with the so-called "ordinary cancellation".
One aspect of the ordinary cancellation of a working contract is the "German Protection against Dismissal Act" (KSchG). On the one side the KSchG has to ensure individual interests of the employer as well as the employee and on the other side to enhance the moral commitment on both sides.
General prerequisites for the application of the KSchG can be found in section 2. The employment law provides three different scenarios of an ordinary termination.
Firstly, the termination for reasons related to the person itself (see section 3), secondly the termination related to the conduct of a person (see section 4) and lastly the termination for urgent operational reasons (see section 5).
Besides the general protection against dismissal the law also provides a special protection for a few groups of employees, which is described in section 6, covering also the extraordinary termination.
Table of Contents
1 Introduction
2 General Prerequisites for Application of the German Protection against Dismissal Act
3 Requirements of Termination for Reasons Related to the Person
4 Requirements of Termination for Reasons Related to the Conduct of an Employee
5 Requirements of Termination for Urgent Operational Reasons
6 Special Protection against Dismissal
Objectives and Topics
This work examines the legal framework for the one-sided termination of employment contracts by employers in Germany, specifically focusing on the criteria for ordinary cancellation under the German Protection against Dismissal Act (KSchG). It aims to clarify the requirements for justified dismissals based on personal, conduct-related, or operational reasons while addressing the protective mechanisms in place for specific employee groups.
- Legal prerequisites for the application of the KSchG.
- Termination criteria related to individual person and conduct.
- Justification for dismissals due to urgent operational reasons.
- Social selection procedures in mass redundancies.
- Special dismissal protection for specific vulnerable groups.
Excerpt from the Book
3 Requirements of Termination for Reasons Related to the Person
The termination for reasons related to the person is one of three reasons of an ordinary cancellation of a working contract by the employer according to § 1 section 2 KSchG. Therefore the reason of termination must be directly linked to the attributes or capabilities of the employee himself, hindering the employee to fulfil the working contract and thus causing an economic and operating disadvantage for the employer. The missing characteristics are neither influencable by the employer nor the employee. In case the employee is able to influence attributes or capabilities a termination for reasons related to conduct of a person (see section 4) is more likely. Typical examples of an ordinary termination due to reasons related to the person are lacking physical capability, lacking mental aptitude, illness, age related decrease of performance, missing work permit (foreign employee) or imprisonment.
There are three requirements for a justifiable cancellation:
1. Negative prognosis: Since the purpose of a termination related to the person is to prevent the employer from prospective obstruction by the employee, the employer needs to prove a negative prognosis of the employee regarding fulfilment of the working contract. In case the impairment of the employee is only temporary the termination for reasons related to the person does not apply.
2. Ultima ratio principle: On the one hand the impairment of the employee must lead to concrete disruption of the working employment. On the other hand it cannot be eliminated by transfer to a different, vacant job within the company. Reasonable educational training has to be considered if needed.
3. Comprehensive balancing of different interests: Lastly it needs to be reviewed whether the operational and/or economic disadvantages for the employer will fairly not be acceptable in the future. Therefor all relevant circumstances directly linked to the working contract need to be balanced, in particular duration of the employment and the previous professional relationship.
Summary of Chapters
1 Introduction: Provides an overview of the employment relationship in Germany and introduces the scope of the German Protection against Dismissal Act (KSchG).
2 General Prerequisites for Application of the German Protection against Dismissal Act: Outlines the mandatory requirements regarding the number of employees and the minimum duration of employment to invoke protection.
3 Requirements of Termination for Reasons Related to the Person: Explains the criteria for termination based on an employee's personal attributes, including negative prognosis and the ultima ratio principle.
4 Requirements of Termination for Reasons Related to the Conduct of an Employee: Discusses terminations driven by employee performance issues, breaches of confidence, or company conduct violations, noting the necessity of prior warnings.
5 Requirements of Termination for Urgent Operational Reasons: Details the conditions for dismissals caused by entrepreneurial decisions, emphasizing the need for social selection criteria.
6 Special Protection against Dismissal: Describes protections granted to specific groups like pregnant women, disabled individuals, and employee representatives, which override general dismissal regulations.
Keywords
German Protection against Dismissal Act, KSchG, Ordinary Termination, Employment Law, Negative Prognosis, Ultima Ratio, Social Selection, Operational Reasons, Conduct-related Dismissal, Special Protection, Employee Representation, Disability, Maternity Protection, Dismissal Protection, Labour Court.
Frequently Asked Questions
What is the primary focus of this academic work?
This work focuses on the legal conditions and justifications required for an employer to legally terminate an employment contract in Germany under the Protection against Dismissal Act (KSchG).
What are the three main categories of ordinary termination discussed?
The work categorizes ordinary termination into reasons related to the person, reasons related to the conduct of an employee, and urgent operational reasons.
What is the central research question?
The core research aims to analyze how employers can legally justify the termination of employment while balancing individual interests against operational requirements and statutory protections.
Which scientific method is utilized in this paper?
The paper utilizes a legal analytical approach, referencing statutory laws (such as KSchG, BGB, SGB IX) and judicial precedents from the Federal Labour Court (BAG).
What is covered in the main body of the text?
The main body details the threshold requirements for applying the KSchG, the three specific scenarios for ordinary cancellation, and the additional layer of special protection for vulnerable employee groups.
Which keywords best describe this study?
Key terms include German Protection against Dismissal Act (KSchG), Social Selection, Ultima Ratio, Negative Prognosis, and special dismissal protection.
What is the "Ultima Ratio" principle in the context of termination?
It dictates that termination should be the last resort; employers must first evaluate if the issues can be resolved through other measures, such as transferring the employee to a different vacant position.
Why is the "Social Selection" procedure important?
In cases of operational termination, the employer must ensure that they terminate those employees who are the least socially vulnerable, using criteria like age, seniority, and maintenance obligations.
How does special protection differ from general protection?
Special protection applies to specific groups regardless of the size of the company and often requires official approval, serving as an additional layer of security beyond the standard KSchG regulations.
- Quote paper
- Jacqueline Rausch (Author), 2014, Social Justification of the Termination of Employment, Munich, GRIN Verlag, https://www.grin.com/document/300047
