To Forgive or to Fire

"Sixty is the age at which you finally

have enough experience to get fired."

Author unknown

Working at a company usually takes up a long stretch of a person's life. People find jobs, climb the career ladder, achieve success, and suffer setbacks — all part of the normal course of life, whose circumstances have a way of changing. It happens that even the most loyal employee decides, for one reason or another, to leave a company that has come to feel like home. An employer, too, can make that same decision about a particular employee or an entire department. Unfortunately, in practice, dismissals are not always driven by objective operational reasons or by any fault of the employee. As we've mentioned in earlier articles, a dismissal is simply a unilateral declaration by the employer or employee to end the employment relationship in the future. German labor law sets out uniform notice periods for dismissal, binding on both employer and employee. As a general rule, notice must be given four weeks before the middle (the 15th) or the end of a calendar month. Depending on the employee's length of service, the notice period can extend to several months. Under German law, for continuous employment at the same company exceeding two years, the notice periods are: 2 months for 5+ years of service, 3 months for 8+ years, 4 months for 10+ years, 5 months for 12+ years, 6 months for 15+ years, and 7 months for 20+ years. Germany's Dismissal Protection Act (Kündigungsschutzgesetz, KSchG) strictly regulates the procedure for terminating employment at medium and large companies (a company counts as "medium-sized" once it has at least 6 employees). The KSchG applies to employees who have worked at the company for more than six months. Germany also has a number of other laws — such as the Maternity Protection Act (Mutterschutzgesetz, MuSchG) — whose breach likewise renders an ordinary dismissal invalid.

Under §1 of the German Dismissal Protection Act, 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. An ordinary dismissal therefore requires social justification — a substantial barrier against unlawful dismissal by an employer. 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 the decision 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 similar circumstances. A dismissal based on the employee's person or conduct is only a last resort and is invalid wherever a milder measure could have been taken instead — as a rule, an employer must first issue the employee a formal warning (Abmahnung) before dismissing them.

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. In this article, we describe one case from our diverse legal practice in which we were able to help a dismissed older gentleman — not reinstate him in his job, but secure a substantial compensation for him.

Our client was an older man named Vladimir (name changed). A naturally conservative man who preferred to avoid change, this "hard worker" had spent around 18 years as an electromechanic at a large energy company. Once he reached an advanced age, he agreed to transfer to a different, less physically demanding role at the same company. Having long since put aside any thoughts of further career advancement, Vladimir raised no real objection — he moved to a position as a goods receiver in the company's warehouse, hoping to see out the rest of his working life there in peace. At some point, however, it became clear that something had gone wrong. Partly because the department was understaffed, and partly because it was difficult for someone of his age to quickly master an unfamiliar new role, Vladimir began receiving first verbal and then written complaints and warnings from his employer. Over time it became apparent that the company had no interest in helping him cope with the new position's challenges or in trying to resolve the difficult situation. On the contrary, our future client's supervisor wanted to bring "fresh blood" into the company in the form of younger specialists, and was actively looking to shed "deadweight." Vladimir was handed a notice whose message was unambiguous: he would be relieved of his position one month from the date of receipt. After several unsuccessful attempts to resolve matters on his own, Vladimir came to us hoping for qualified legal help. Our firm's labor-law specialist got to work immediately, first preparing a written complaint addressed to our client's former employer. Once it became clear the dispute could not be resolved through a formal demand, our firm's lawyer drafted and filed a claim with the labor court — naturally, within the statutory three-week filing deadline. Given our client's age, it was agreed with him that the main goal of the claim would not be reinstatement to his old job, but obtaining a fair and well-deserved compensation. A preliminary hearing was scheduled within 6 weeks of filing our claim. The judge's main goal at such preliminary hearings is generally to try to reconcile the parties and encourage them toward a settlement. The defendant was represented at the hearing by the company's manager, our client's former employer, together with a lawyer. At the start of proceedings, the company's representatives took an uncompromising position, insisting their decision had been correct and lawful, and refused to consider any compromise. Nevertheless, the judge remarked at the preliminary hearing that the ultimate outcome of the case was far from clear-cut, since it would first be necessary to establish reliably whether the employee had really been negligent or careless in performing his duties, or was simply unsuited to the role. According to the arguments we presented, our client's mistakes at work stemmed solely from poor work organization at the company and understaffing in the goods-receiving department.

After the preliminary hearing, the defendant's representatives decided to seek a compromise and try to reach an agreement with the dismissed employee. Had the company lost the case outright, its losses would have been considerably greater — it would have had to pay our client a compensation equal to a full year's salary for the position. The company's management realized it would be more sensible to agree on compensation right away than to take an unjustified risk. So, by mutual consent, the parties decided to compromise and enter into a settlement agreement. Thanks to our lawyer's active involvement, the dismissed employee received 10,000 € in compensation. Although our client had to bear the cost of retaining our firm's lawyer himself, he still came out substantially ahead, since that sum secured him a decent living for several months. Once again, we saw confirmation that having a professional handle a case — even a difficult and unusual one — significantly improves the odds of success. We wished Vladimir good health and many more years of life, and assured him that our firm always stands ready to help in a difficult life situation requiring the legal expertise of experienced professionals.

Employment & Labor Law

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