A guide to filing an action for unfair dismissal

Regardless of whether a dismissal has been in the pipeline for a long time due to operational changes or employees are surprised by it, it is always one thing: a cut in professional life that has consequences. In order to mitigate the effects of the dismissal and, ideally, to make it positive, it makes sense to file an action for protection against dismissal.

Termination - review of legality

Dismissal is not always justified. The reasons stated in the letter of termination are sometimes not sufficient to terminate an employment relationship. The termination of the employment relationship can also fail due to formal errors, for example if no reason for termination was stated in the written notice of termination or if only verbal notice was given.

The first step must therefore always be to check the legality of a dismissal. Naturally, the views of employers and employees differ in many cases. This is why a verbal consultation with a lawyer experienced in employment law is an important basis. He or she can assess the prospects of success of an action for protection against dismissal or negotiate a termination agreement and severance pay on behalf of the employee.

Together with a lawyer, dismissed employees can develop strategies and discuss all possible consequences. Even if dismissals for operational reasons affect several employees, there may be individual ways to find the best possible solution. Finding them and acting with foresight is the task of an experienced lawyer.

Observe deadlines - file an action for unfair dismissal

It is in the interest of both parties, both the employer and the employee, that the clarification of the continuation or termination of an employment relationship takes place promptly after the dismissal. The legislator therefore stipulates a period of three weeks for filing an action for protection against dismissal.

The three-week period for filing an action begins with the receipt of the written notice of termination. A verbal dismissal only becomes effective when it is repeated in writing. In many cases, the notice of termination is handed over by the company management directly at the workplace. In this case, the time of handover is decisive and the time limit begins to run immediately.

If the notice of termination is sent by post, this is usually done by registered mail. This provides the sender with proof of when the notice of termination was handed over or placed in the letterbox. Delivery by the company's messenger is also possible. However, this does not always mean that the day of delivery is also the day of actual receipt.

As a rule, the following day is also accepted as the start of the notice period, especially if a letter of termination deposited by a messenger is only received after the usual postal delivery time. Delayed receipt may also occur if the dismissed employee was absent from work. However, this is a special case, as the deadline for filing an action for unfair dismissal begins to run from the day on which the letterbox would normally have been emptied if the employee had been present.

In practice, actual receipt is irrelevant if the letter of dismissal is responded to immediately. An action for protection against dismissal can also be filed within the deadline. This gives employees and their lawyers the leeway they need to assess their personal situation.

Action for protection against dismissal - the applications

The action for protection against dismissal must be filed with the locally competent labor court. In addition to the exact designation of the parties, i.e. the employee as the party to the action and the employer or its managing director or other authorized representative and the respective lawyers, an action for protection against dismissal must contain motions.

One of the requests is that the employment relationship should not be deemed terminated by the notice of termination given on the specified date for the specified reason and that it should not be terminated by any other grounds for termination. This means that if notice is given for operational reasons, the employer cannot use conduct-related reasons to terminate the employment relationship in its favor.

The action for protection against dismissal also requests that the employment relationship continues unchanged beyond the specified termination date. This addition is important even if you as an employee - understandably - no longer wish to remain with the company. It is advantageous from two points of view. The first point is protection against the job center if unemployment benefit has to be applied for. If a dismissal is accepted without further ado, there is a risk of a suspension period. The second aspect is to create the best possible position for a severance payment and/or possibly a settlement or termination agreement.

As each party bears its own share of the court costs and the respective lawyer's fees in the first instance before the labor court, the assumption of costs by the defendant can be listed as a further point in the application. This is particularly important if you as an employee do not have legal protection from an insurance company or a trade union.

Action for protection against dismissal - the statement of grounds

The success of the action for protection against dismissal will depend on a professionally correct and comprehensive statement of grounds. It can and should already be set out when the action is filed. If there is not enough time between the notice of dismissal and the expiry of the deadline for filing a complaint to discuss the matter in detail with a lawyer who is competent in employment law, the statement of grounds can be supplemented.

Conciliation hearing - reaching an agreement

Every action for protection against dismissal that is filed is forwarded to the defendant, i.e. the employer. The employer has the opportunity to present his view of the matter and to submit motions. The labor court grants the employer a period of at least two weeks to do so. This deadline, which applies to the other party, also gives employees and their lawyer time to agree on how to proceed.

The Labor Court Act stipulates that a conciliation hearing must take place before every chamber hearing. It is usually scheduled shortly after the claim is filed. In this conciliation hearing, the parties have the opportunity to reach an agreement without a court ruling. The competent labor court judge also gives an initial assessment of how the further course of the proceedings might develop. If it is likely that the employer will lose the case, the way is open for an amicable departure from the company with all its benefits.

Your lawyer will assess whether a settlement submitted by the labor court should be accepted, taking into account your personal circumstances. If no agreement is reached at the conciliation hearing, a chamber hearing will take place at a later date at which a judge's decision will be made in favor of one of the parties.