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Receiving notice of termination leaves many employees speechless and unable to act. Even a dismissal with notice comes as a surprise, even if it was at least preceded by a warning. However, those affected are far more surprised when they are dismissed for cause or without notice. They are not always aware of the employer's motives or the consequences of the misconduct. Fortunately, nobody has to accept a dismissal unchallenged. The legislator has created the possibility for employees to file a complaint against the dismissal. The court will examine whether all the requirements for dismissal have been met. If this is not the case, the employee must continue to be employed - at least for the time being.
The period within which an action for protection against dismissal can be brought may also begin to run if you were absent from the place where the notice was served. The legislator takes the view that in the event of absence, precautions must be taken to obtain knowledge of important documents. It is possible to apply for the so-called restitutio in integrum and to file an action for protection against dismissal at the same time. However, restitutio in integrum does not necessarily have to be granted, as the court examines the individual case.
At the latest, if the employer has sent you a warning with a threat of dismissal before your vacation and the warned behavior has been repeated, you must expect to be dismissed. If you then react too late and fail to file an action for unfair dismissal in good time, the labor court will hardly accept an excuse. In such a case, appoint a reliable person to receive and sift through the mail for you while you are away. This is the only way you can react quickly and instruct us to file an action for unfair dismissal.
After receiving notice of termination, employees have three weeks to file an action for protection against dismissal. This period applies to all types of dismissal, from ordinary dismissal to dismissal without notice.
Important components of an action for protection against dismissal are the application and the statement of grounds. However, there is some leeway in terms of time for the statement of reasons. It does not have to be included immediately in the action for protection against dismissal; we can submit it retrospectively within one month. For example, we can use this period to provide reasons if documents such as warnings need to be inspected or witnesses need to be found who can provide information on the reasons given in the dismissal.
The applications include, among other things, that the court should determine that the employment relationship is not terminated by the dismissal and continues beyond the specified date. Depending on why you were dismissed and how you are planning your career steps, the applications can be extended individually. For example, you can apply for decisions on outstanding vacation and continued salary payments, leave of absence and severance pay or continued employment in another job. We will be happy to advise you in detail and develop a strategy that will have a positive impact on your future career path
Once the action for protection against dismissal and the grounds have been submitted to the labor court, the other party is given the opportunity to submit a response. Once this has been submitted to the court, a date is set for an oral hearing. There are two types of hearing:
Whenever possible, the labor court will schedule the first hearing promptly after the dismissal protection claim has been filed. The purpose of this hearing is to reach a decision without any further loss of time - which could be detrimental to both the employee and the employer. In the conciliation hearing, each party has the opportunity to present their views to the presiding judge once again. After considering the parties' views, the judge will make a settlement proposal.
As your lawyers, we have already considered various options in advance and discussed them with you depending on your objectives. A brief discussion during a break in the negotiations is also conceivable. If the court's proposal fits in with our and your concept, we can agree to the settlement proposal now, provided the other party also agrees. There are no further appointments and no costs will be charged by the court.
For you, reaching a quick decision means that the uncertainty about the employment relationship has come to an end, regardless of the outcome. You can devote yourself to new tasks or, on a better basis than after a contentious negotiation, continue working at your old job.
The fact that this can involve a financial risk can be a disadvantage. A new employment relationship is usually not yet in sight at this point. However, the settlement proposed by the presiding judge usually indicates a tendency as to how the judge will rule after a chamber hearing. If it is likely that the case will end in your favor after the hearing, you will usually be in a better financial position. If the employer loses the unfair dismissal proceedings, they will have to pay the salary for the period up to the judgment or a later termination date of the employment relationship. This means that you are in a better position to negotiate severance payments.
If no agreement can be reached at the conciliation hearing - a second conciliation hearing is also possible - the next step is the chamber hearing. Both parties can make further statements and submit evidence before the hearing. At the hearing, the facts of the case are discussed again and the presiding judge and two assessors hear the submissions of both parties. The judges continue to strive for an amicable settlement, and a settlement can still be reached at this stage. If details regarding the termination and the reasons for it still need to be clarified, evidence will be taken and a further hearing may be necessary.
In most cases, the process now comes to an end and the matter is ready for a decision. This is announced by the judge. He announces when the date for the announcement of the decision is. This date does not have to be attended; the minutes of the hearing are sent to the parties or their legal representatives together with the judgment. An appeal can be lodged against the judgment, although this is rarely the case in practice. Both parties are bound by the decision once it has become final.
For an action for unfair dismissal, the value in dispute is calculated from the gross salary. Three gross salaries are used for the dismissal. If there are further points of dispute in the process, the value in dispute is increased: for the issue of a reference or correction of the reference by a further gross salary, if outstanding wages are claimed, this sum is added to the value in dispute. A severance payment claimed with the action for protection against dismissal or in the course of the proceedings is also added to the amount in dispute. This amount in dispute is also determined by the labor court in the judgment, so that every employee has verifiable information here.
In proceedings before local or regional courts, the loser usually bears the costs. This is not the case with an action for unfair dismissal before the labor court. In the first instance, each party must pay their own lawyer's fees unless a settlement has been negotiated in which one party assumes the costs or the costs are split in a ratio that is more favorable to the employee.
This naturally means that employees sometimes shy away from the cost risk of taking legal action against dismissal. There are various ways of structuring the legal costs:
You can minimize costs in a dismissal protection action by representing yourself. However, it is more than questionable whether the cost advantage is worth the increased litigation risk. Of course, if it is financially possible for you, you can bear the costs of the dismissal protection action yourself. We will be happy to inform you of the amount in advance so that you can decide for yourself.
If you have taken out legal protection insurance that includes employment law cover, you will usually be granted cover for the dismissal protection claim. We will be happy to obtain this for you; all we need is the company and the insurance policy number. We will take care of all further correspondence with the legal expenses insurance company and the settlement of our costs.
You do not have to pay an advance on our fees and the costs of the court if you use the services of a litigation funder. These companies assume all legal costs in return for a share of the proceeds. This model can pay off if you are expecting a higher settlement amount.
Low-income earners often have the option of being represented by us within the framework of legal aid. A certain level of income and assets must not be exceeded, and fixed expenses such as maintenance obligations, rent and living expenses are taken into account. Another prerequisite is that the lawsuit is important to you and is not being brought willfully. We will be happy to check in advance whether your application for legal aid can be successful and tell you which documents we need to submit to the court to prove your financial circumstances.
If this is the case, we will submit the application to the court together with the action for unfair dismissal. If it is approved, the state treasury will advance the costs incurred. The amount of your income will determine in which installments - or if at all - you will have to repay this advance on costs after the end of the proceedings. We will be happy to show you in a personal consultation what such a model might look like in your personal case.
The court costs are distributed according to the familiar pattern: whoever loses pays. If you win, you win here too. Costs can also be shared, depending on the outcome of the case. The amount of the court costs is based on the amount in dispute. However, lower costs are incurred in proceedings before the labor court than before the district or regional court. An advance on court costs is not required. If the dismissal protection proceedings end with a conciliation hearing, the state bears the costs.
In addition, the lawyer is entitled to a lump sum for expenses, reimbursement of travel expenses incurred, writing expenses and the current rate of VAT.
The same applies to our fees: We will show you the costs you will incur based on your personal legal case.
There is no obligation to have a lawyer before the German labor courts. This means that, in principle, anyone can represent themselves there. Anyone wishing to file a dismissal protection claim can do so in writing. Alternatively, the action for protection against dismissal can be submitted for the record at the office of the labor court. However, you are giving away an important instrument: equal opportunities. Employees are generally inferior to the employer when it comes to dismissal protection proceedings. Employers sometimes have years of experience in employment law, specially trained people or even in-house lawyers to represent them. You are almost always automatically at a disadvantage if you bring an action for protection against dismissal yourself.
So take your chances and move straight away. With legal advice, representation in the dismissal protection proceedings - and any additional pending legal disputes such as the issuing of references, severance pay and a termination agreement - you are in a position to stand up to your employer.
We check in advance whether the dismissal fulfills all formal requirements and do everything we can to ensure that we file an action for protection against dismissal with the competent labor court in good time.
We will check your chances of success free of charge!
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