Social Justification of the Termination of Employment


Term Paper, 2014
11 Pages, Grade: 2,0

Excerpt

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

References

List of Abbreviations

1 Introduction

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".1

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 2.2

The employment law provides three different scenarios of an ordinary termination3. 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 employees4, which is described in section 6, covering also the extraordinary termination.

2 General Prerequisites for Application of the German Protection against Dismissal Act

For application of the KSchG two general prerequisites are mandatory.

First prerequisite is, according to § 23 section 1 KSchG, a minimum number of ten regular jobs or working employees. For employments before 01.01.2004 a limit of five regular jobs applies5. The number of regular working employees is not calculated as an average value over the last twelve months but but the number of regular jobs is crucial (BAG 31.01.1991, 2 AZR 356/90, NZA 1991, 562). Trainees or apprentices are not considered as regular working employees. According to § 23 section 1 KSchG, part time employees are considered with respect to their agreed working time. Up to a regular working time of 20 hours per week it is 50% of a full job and up to 30 hours per week it counts 75%.6

The above mentioned limit of regular working employees also applies to companies with more than ten employees, which are distributed over several branches, even if less than ten employees work at the single branch7.

The second prerequisite is the duration the of employment. According to § 1 section 1 KSchG an employee may invoke the German protection against dismissal act if the employee is permanently employed for at least six months at the moment of receiving the letter of cancellation. Thereby times of professional training are considered as times of employment. However, the KSchG does not apply to the whole enterprise but to the overall company. That means former employment times in other parts of the company count but not employment times in another company of the enterprise (BAG 27.11.1991, 2 AZR 255/91, NZA 1992, 644).8

The calculation of the duration of employment usually starts with the first working day, even if the signing of the working contract takes place at a later day (BAG 27.06.2002, 2 AZR 382/01, NZA 2003,377). The last day of the minimum six-months employment duration is calculated according to § 188 section 2 BGB. Furthermore employment duration of a temporary working contract prior the current contract has to be added.9

The six-months period is mandatory in a way that a shorter period may be agreed by working contract and by labour agreement, respectively.10

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 termi- nation 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.11.

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 contract12. In case the impair- ment of the employee is only temporary the termination for reasons related to the person does not apply13.
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 company14. Reasonable educational training has to be considered if needed15.
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 relationship16.

4 Requirements of Termination for Reasons Related to the Conduct of an Employee

The termination for reasons related to the conduct of an employee is a second motive for an ordinary cancellation of a working contract by the employer according to § 1 section 2 KSchG. In contrast to the cancellation caused by reasons related to the person itself (see section 3) it needs a contrary to contract conduct of the employee and a failure to fulfil the working contract.17

It needs to be distinguished between three areas of reasons related to the conduct of an employee:

1. Performance (low- or non-performance): According to BAG DB 1980, 1351 a termination due to lacking performance needs one or more prior written warnings, depending on the severity18.
2. Disruption of confidence or trust: Most frequently these disruptions are based on cheating, disloyalty or thievery by the employee. In general a cancellation of this type needs a written warning beforehand because an improved behaviour of the employee must be expected. In case the employer-employee relationship is irreparably disrupted and a continuation of the working contract is not considered as reasonable for the employer, a termination may be applied imme- diately.19
3. Breaches of the internal arrangements or company climate: Examples are defamation of others, bullying or inobservance of prohibitions and rules. A prior written warning is needed.20 The reason for the final termination has to be of similar type but not identical to the reason for the written warning. There is no general classification of similar reasons and so each case needs to be considered individually.21 Furthermore, according to BAG NZA 1987, 418 the effectiveness of a written warning is temporarily limited. For minor breaches of the working contract the warning lasts for 2 years. Warnings related to severe breaches last 3 years. However, the mentioned time limits are not considered as hard but as an indicator. On an individual basis all circumstances have to be taken into account.22

The effectiveness of a termination can also be checked by the three principles negative prognosis, ultima-ratio and balancing of interests. To prove the negative prognosis of an employee the writ- ten warning serves as an objective instrument. Secondly, it has to be checked whether the negative conduct of the employee at another working place within the company would remain. Contrary to ultima-ratio-principle at section 3 the reasonability is not too strict because the employee can directly influence his working contract compliant behaviour. The same applies to the balancing of interests of the employer and the employee. Aspects regarding balancing of interests are severity and type of negative behaviour, duration of employer-employee relationship, duration of positive relationship and severity of disturbances.23

5 Requirements of Termination for Urgent Operational Reasons

In contrast to termination for reasons related to the person or related to the conduct of an employee the termination for urgent operational reasons is based on entrepreneurial decisions by the employer leading to job losses. Thereby the constitutional law (GG) art. 12 and art. 14 guarantees the employer the entrepreneurial freedom for running and arranging a business. On the other side the KSchG exists.24 To combine and ensure both rights the effectiveness of a termination for urgent operational reasons is judged by the following three aspects.

1. Unavoidable reduction of demand on employees: According to § 1 section 2 clause 4 KSchG the employer needs to prove the facts leading to an unavoidable reduction of staff. Therefore and to ensure conformity to the GG the labour court does not consider the correctness of the entrepreneurial decision as long as the decisions are not arbitrary, illogical or obviously irra- tional.25
2. Exigency of operational reasons: Exigency is characterised by urgent operational reasons and a termination by the employer must be unavoidable (BAG NJW 1979, 1902; BAG NZA 1986, 155). A termination is deemed to be unavoidable if the employer is able to prove that a change of the internal situation by other technical, organisational or economical measures is impossible. In particular it has to be checked if the employee can be introduced to another vacant or foreseeable vacant job within the company (BAG NJW 1991, 587).26
3. Social selection: According to § 1 section 3 KSchG a social selection procedure has to be executed and only the least social protectable employees may be terminated. The burden of proof of a missing or inaccurate social selection procedure is on side of the employee.

Social selection criteria are age, seniority, maintenance obligations and severe disability of the employees. No other criteria are allowed but aspects which are in direct context of the social selection criteria. The employer defines the weighting of the social selection criteria. Although the employer needs to consider all of the four mentioned criteria and must set them in an appro- priate ratio (BAG NZA 2003, 791). However, a termination may be null and void if it violates discrimination rules. In particular the selection criteria age might be disputable according to the General Equal Treatment Act (AGG) §§1-10. However, a higher age of employees usually correlates with worse chances regarding finding a new job a higher scoring is legitimate. Since § 1 AGG prohibits the discrimination of disabled people, it has to be taken into account whether not only severely disabled people but disabled people in general are considered with respect to selection criteria "severe disability". The social selection procedure must be performed based on company- but not enterprise level and all horizontally comparable workers have to be in- cluded. Employees with very special knowledge, skills or performance that are urgently needed for further business may be excluded and special protected employees (see section 6) have to be excluded27. Whether single employees are excluded from the social selection procedure needs to be checked individually and all different interests need to be balanced comprehensively by the employer. A vertical comparison of employees is ineligible. Comparability of employees is characterised only by skills and knowledge but not by duration and location of working time. Consequently differentiation between part time and full time employees is not allowed; both have to be taken into account (BAG NZA 1999, 431 and BAG NZA 2004, 1389).28

6 Special Protection against Dismissal

A few groups of employees specially protected against dismissal exist. On the one hand the special protection balances the interests of individuals and on the other hand it also protects general good. Within the Special Protection against Dismissal there are several different rules. Some of them limit the privilege of the employer for an ordinary cancellation of the working contract, other rules also limit the extraordinary cancellation. Partly, special protection against dismissal requires an approval for termination by an official authority. Table 1 lists the groups of people entitled to special protection against cancellation as well as related authorities and acts.29 The largest groups are women according

Table 1: Group of people entitled to special protection against cancellation.

Abbildung in dieser Leseprobe nicht enthalten

[...]


1 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 365

2 Junker (2007), Grundkurs Arbeitsrecht, 6th edition, Verlag C.H.Beck, page 200

3 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 217

4 Junker (2007), Grundkurs Arbeitsrecht, 6th edition, Verlag C.H.Beck, page 197

5 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 408

6 Senne (2011), Arbeitsrecht, 8th edition, Verlag Franz Vahlen GmbH, page 206

7 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 217

8 Senne (2011), Arbeitsrecht, 8th edition, Verlag Franz Vahlen GmbH, page 206

9 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 218

10 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 406

11 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 220

12 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 418

13 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 220

14 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 418

15 Junker (2007), Grundkurs Arbeitsrecht, 6th edition, Verlag C.H.Beck, page 205

16 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 418

17 Senne (2011), Arbeitsrecht, 8th edition, Verlag Franz Vahlen GmbH, page 214

18 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 232

19 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 422

20 Senne (2011), Arbeitsrecht, 8th edition, Verlag Franz Vahlen GmbH, page 215

21 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 232

22 Ibid., page 233

23 Junker (2007), Grundkurs Arbeitsrecht, 6th edition, Verlag C.H.Beck, page 208

24 Senne (2011), Arbeitsrecht, 8th edition, Verlag Franz Vahlen GmbH, page 226

25 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page244f

26 Senne (2011), Arbeitsrecht, 8th edition, Verlag Franz Vahlen GmbH, page 246

27 Hromadka and Maschmann (2011), Arbeitsrecht Band 1, 5th edition, Springer Verlag, page 438f

28 Hirdina (2010), Grundzüge des Arbeitsrechts, 3rd edition, Verlag Franz Vahlen GmbH, page 246ff

29 Junker (2007), Grundkurs Arbeitsrecht, 6th edition, page 196f

Excerpt out of 11 pages

Details

Title
Social Justification of the Termination of Employment
College
German Graduate School of Management and Law gGmbH
Course
Corporate Governance and the Legals Aspects of Business
Grade
2,0
Author
Year
2014
Pages
11
Catalog Number
V300047
ISBN (eBook)
9783656965770
ISBN (Book)
9783656965787
File size
421 KB
Language
English
Tags
social, justification, termination, employment
Quote paper
Jacqueline Rausch (Author), 2014, Social Justification of the Termination of Employment, Munich, GRIN Verlag, https://www.grin.com/document/300047

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