Where to Find Justice When You Are Dismissed

Why linger at the crossroads, when the roads will part ways regardless!

Vladimir Tarasov

Clients of every age, occupation, and social standing come to our firm's lawyers for help. In our day-to-day work, we advise both private individuals and authorized representatives of companies. We are frequently approached by clients whose questions concern the correct application of German labor law. It has to be said that a great many disputes arise when an employer decides to end a working relationship — that is, when it dismisses an employee. Every manager, at some point in their career, has had to part ways with an employee. For some, the decision comes easily; for others, it is agonizingly slow and difficult. It is rare for a dismissal decision to be made on a whim; usually an employee's "file" accumulates enough missteps that the last one becomes the final straw that breaks the manager's patience. At its core, the unpleasant process of dismissal is not meant to insult the person being let go — it simply reflects either their unsuitability for the role, or the company's own difficult financial position. In Germany, employees are protected by law against unlawful and unfair dismissal. The Dismissal Protection Act (Kündigungsschutzgesetz, "KSchG") is in force and actively applied here. It governs the procedure for terminating an employment contract at medium and large companies (a company is considered "medium-sized" once it has at least 6 employees). It should also be kept in mind that the KSchG only applies to employees who have worked at the company for more than six months. Under the Act, a dismissal is illegitimate 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. German labor law sets out uniform notice periods for dismissal, binding on both employee and employer. As a general rule, notice of dismissal 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. One case our firm's labor-law specialist successfully won at trial concerned the dismissal of an employee at a small beauty salon in Berlin.

Our client was a young entrepreneur, Alla (name changed). For years she had worked as a manicure and pedicure technician, first at a budget salon, then at larger ones, and eventually, having built up her skills and a solid client base, decided to take the plunge and open her own small business — a beauty salon. She managed to find premises almost in the center of Berlin; her technicians were mostly former colleagues from the trade, people she had already, so to speak, "eaten more than one peck of salt with." The one exception was the receptionist, Svetlana (name changed), whom Alla found through a classified ad in a local newspaper. Alla made a small mistake by not giving much weight to this particular candidate for receptionist at the time — something she would later come to regret bitterly, more than once. The girl seemed pleasant and easy to talk to, had some prior service experience, spoke decent German and English, and both sides were happy with the working terms. What more, one might think, could a small salon's receptionist need? Svetlana was hired under an open-ended, full-time employment contract with a six-month probationary period.

Unfortunately, it became clear after just the first week that the young woman could not handle even the most basic duties entrusted to her. First, she was chronically 15 to 20 minutes late for work, meaning technicians — and sometimes even clients — would arrive at the salon before her, which naturally made a poor impression. Second, she constantly attended to personal matters during working hours — chatting with friends online, buying tickets to events, printing personal documents. This led to regular errors in the client-booking schedule; more than once, two clients would show up for the same technician at the same time, or, conversely, a technician would wait in vain for a client who never came. Third, it was clear from the start that the girl led an active social life, indulging in late nights at bars that carried on into nightclubs — including on weekdays. Naturally, the next day she would struggle to focus on her work and current duties. Clients noticed on several occasions that she calculated payments incorrectly and forgot to issue receipts. The technicians tried for a long while to help the young employee, overlooking her mistakes and slip-ups and asking her to be more careful — but the situation only got worse, not better. Alla realized something had to be done, and quickly. While the employee's probationary period had not yet expired, the salon owner made the firm decision to talk to her about the upcoming dismissal and agree on a final working date. The young woman seemed prepared for the conversation, taking both the criticism of her work and the news of her dismissal fairly calmly. Alla, not especially experienced in business, felt somewhat sorry for her and allowed her to keep working at the salon until the end of the following month. But even after this "amicable" resolution, Svetlana did not change her behavior at work. Apparently deciding she had nothing left to lose, she stopped keeping to her working hours altogether, spoke rudely to clients, and made negative remarks about the technicians. A few days later, it became clear to the salon's owner that decisive action was needed. Svetlana was handed a written notice of dismissal at the employer's initiative, effective 14 days after delivery of the notice. Since the probationary period set out in her employment contract had not yet expired, a two-week notice period was legally sufficient. The young woman limped along until the date stated in the notice, and on her last day left the salon with her "head held high." Every employee breathed a sigh of relief — prematurely, as it later turned out. Exactly two weeks after Svetlana's dismissal, Alla received a claim summoning her before the labor court over the "unjust" dismissal of her erstwhile receptionist. The young woman, claiming her dismissal had been unfair, demanded compensation of 1,000 euros. The entrepreneur turned to our law firm to defend her lawful interests in court.

The Lawyer Who Took On Alla's Case Explained the Following:

— the company had only five people on staff, including Alla herself, and so counted as a small business falling outside the scope of the Kündigungsschutzgesetz;

— Svetlana had worked at the company for only about a month and a half, and so likewise could not invoke the provisions of that Act;

— Alla had complied with every statutory requirement in dismissing her employee. The young woman's chances of recovering anything in court were therefore minimal.

The only wrinkle was the written notice our client had drafted herself. As it turned out, it stated that the employee was to be dismissed 14 days after receiving the notice — but, in practice, her last working day had fallen on the 13th day counted from the start date. Here too, we reassured our client that a court, in such cases, looks not only at the formal wording, but at the actual facts of the case. All of these arguments, together with supporting documents and witness testimony, were thoroughly presented to the court by our lawyer. Just as we had rightly expected, the judge accepted our legal position and dismissed Svetlana's claim in full. We wished Alla continued success in her business and hard-working, responsible staff, and added this case to our firm's growing list of wins.

As we have mentioned before, dismissal-related problems can arise for either employees or employers. We encourage readers who find themselves being dismissed, or having to dismiss someone, to always stay level-headed and follow the letter of the law scrupulously. Should you run into problems or disputed situations, our law firm is here to help you understand the legal side of the matter and, where necessary, to defend your rights and legitimate interests in court.

Employment & Labor Law

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