According to statistics, over the course of a lifetime a person works continuously for more than 10 years. We therefore devote a substantial share of our lives to work, which is why the terms on which the employment relationship with an employer is built matter so much. Addressing problems that arise in the workplace, and preventing them in the first place, is a task the state takes on. In most countries, the aims of labor law are to guarantee certain rights for employees, who stand in a position of dependence on their employer, to foster favorable working conditions, and to reconcile the interests of employees and employers.
Our client, Denis (name changed), had moved to Germany from Kazakhstan a few years earlier. With years of experience in retail in Kazakhstan and a relevant qualification obtained in Germany, Denis registered with a job center and, after some time, secured a position in the logistics department of a German trading company. That company traded with CIS countries, so Denis's knowledge of Russian, alongside German, came in useful. The only catch was that his contract ran for just one year, since our client was filling in for the department's regular employee, who was on parental leave. Denis liked the working conditions well enough that, after some thought, he decided to accept the position on those terms.
Good to Know
A dismissal can only be challenged before the labor court within 3 weeks of receiving written notice (§4 KSchG). If that deadline is missed, the dismissal is automatically treated as valid — even if it was unlawful.
Seven months into the job, however, our client fell seriously ill and had to spend nearly a month in hospital. As soon as Denis returned to work, his employer informed him that, unfortunately, it had no choice but to terminate his employment contract for operational reasons. He was handed the corresponding notice of dismissal.
Sensing that the real reason likely had nothing to do with operational needs — our client had heard of no changes to the company's business or any staff reductions — but rather with his declining health, Denis decided to seek legal advice from our law firm.
After explaining the situation to the lawyer and handing over the dismissal notice he had received from his employer, our client asked whether it was possible to challenge the employer's decision, given his doubts about whether the dismissal was really driven by the company's operational needs.
Our lawyer explained that, under German law, an employee who has worked at a company for more than six months has the right to challenge a dismissal decision if it is socially unjustified. Under §1 of the German Dismissal Protection Act (Kündigungsschutzgesetz), a dismissal is considered socially unjustified if it is not based on reasons relating to the employee's person, their conduct, or urgent operational needs that prevent the employee from continuing to work at that company. The burden of proof lies with the employer — it is the employer who must prove that the dismissal was based on specific grounds ruling out a finding that it was socially unjustified. Such grounds often include, for example, an employee's negligent performance, or the fact that the company no longer needs certain specialists due to a change in its line of business, is reducing headcount for financial reasons, and so on.
Our client was greatly relieved to learn of this statutory protection against unfair dismissal, and he instructed the lawyer to represent his interests in the matter. Under §3 of the Dismissal Protection Act, an employee must, within three weeks of receiving written notice of dismissal, file a claim with the labor court seeking a declaration that the employment relationship was not terminated by the dismissal in question. Since Denis had come to our firm nearly two weeks after receiving the notice, the lawyer had to gather all the necessary information and draft the statement of claim in very short order — but the claim was filed with the labor court within the statutory deadline.
Once the claim had been accepted, the court scheduled a preliminary hearing at which both parties were to present their arguments and evidence — in particular, the employer had to show that the decision to dismiss the employee was based on grounds recognized by law.
Just a few days after receiving the court's summons for the preliminary hearing, however, a representative of Denis's employer contacted our lawyer, wanting to know what our client was seeking and on what basis. Realizing that the employer was trying to gauge its chances of winning, our lawyer laid out the main arguments in detail. The first reason the dismissal decision could be found socially unjustified — and therefore unlawful — was that the employer had not stated any specific lawful ground for dismissing our client, and most likely had none. Nor had any evidence been presented that the works council had been consulted. What's more, dismissing our client would prove costly for the employer: Denis had been placed with the company by the job center, which had been reimbursing part of his salary to the employer for six months. Under the arrangement between the job center and the employer, Denis was to work at the company for a full year; if he were dismissed early, the employer would have to reimburse the job center for part of the payments already received.
Realizing it would be very difficult to counter our lawyer's arguments, the employer asked for time to think it over — but got back in touch that very same day, asking what our client's demands were.
The lawyer explained that Denis wished to keep working at the company until the end of his contract — another 5 months. What's more, wanting to protect our client from any unfair treatment by the employer over the course of the dispute, the lawyer demanded that, once the employment relationship ended, the employer also provide Denis with a favorable, qualified reference rating his performance as "good."
A short while later, the lawyer received a formal letter from our client's employer stating that it was prepared to sign a settlement on the terms our lawyer had proposed: the dismissal decision would be treated as void, and our client would remain an employee of the company until his original contract expired.
Our lawyer prepared the necessary settlement agreement and submitted it to the labor court to bring the proceedings to a close. The opposing side confirmed its acceptance of the settlement, and the case was closed.
As this example from our firm's practice shows, obtaining timely legal advice on a matter that concerns you lets you exercise rights under the law you may not even have known you had — and having an experienced lawyer handle the dispute significantly improves your chances of effectively protecting your interests.
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