a) Written form
The written form of termination ordered in Section 623 of the German Civil Code (BGB) is intended to provide legal certainty for the contracting parties and to make it easier to provide evidence in legal disputes. According to a ruling by the Sixth Senate of January 24, 2008 ( 6 AZR 519/07 ), the requirement for a handwritten signature on a notice of termination does not require that the identity of the issuer be identified immediately upon submission of the written declaration for the recipient of the declaration. This should only be able to be identified. This does not require the name to be legible. All that is required is a lettering that sufficiently identifies the identity of the signer and has individual and correspondingly characteristic features that make imitation difficult.
b) Notice periods
According to Section 622 Para. 4 Sentence 2 BGB, within the scope of a collective agreement, the provisions agreed therein, pursuant to Section 622 Para. 1 to 3 BGB deviating provisions apply if their application is agreed between the parties. The Second Senate had to decide whether, according to Section 622 Para. 4 Sentence 1 BGB, collective agreement regulations are also permissible which provide for uniform notice periods and termination dates for small businesses without graduation according to length of service and age. In its judgment of April 23, 2008 ( 2 AZR 21/07 ), the Senate answered this question in the affirmative. In any case, the collective bargaining parties may agree on uniform notice periods of 6 weeks to the end of a calendar month for employees in small businesses. It is not acceptable to postulate and take into account a higher goal or model of the overall legal regulation, contrary to the wording and the clearly stated intention of the legislature. Neither Article 3 of the Basic Law nor Article 12 of the Basic Law contain a requirement to differentiate the collective notice periods in small businesses based on age or length of service.
c) Scope of application of the KSchG
In the judgment of January 17, 2008 ( 2 AZR 902/06 ), the Second Senate confirmed its case law with detailed reasons that, subject to special provisions of Community law, the Dismissal Protection Act only applies to companies that meet the requirements of Section 23 in the territory of the Federal Republic of Germany Section. 1 Sentence 2 KSchG must be met. In this interpretation, the standard does not violate Article 3 Paragraph 1 GG. The legislative decision to require the company to be based in the Federal Republic for the application of the Dismissal Protection Act is not arbitrary.
According to the previous jurisprudence of the Second Senate, which it most recently expressly referred to Section 23 Para. 1 Sentence 2 KSchG in the version applicable until December 31, 2003, the employee bears the burden of demonstrating and proving that the operational requirements for the dismissal protection law to apply are met. In its judgment of June 26, 2008 ( 2 AZR 264/07 ), the Senate also adhered to this case law for the new version of Section 23 KSchG that came into force on January 1, 2004. At the same time, the Senate confirmed that excessive demands should not be placed on the employee’s fulfillment of the burden of presentation. The objective content of fundamental rights, here Article 12 of the Basic Law, is also very important in procedural law. The importance of fundamental rights must be reflected in particular in the distribution of the burden of proof and presentation.
Care must be taken to ensure that the employee is not asked to provide information that he or she cannot provide due to a lack of personal knowledge. In the absence of his own knowledge, he satisfies his burden of presentation simply by asserting that the employer employs more than ten employees. It is then up to the employer to fully explain the number of employees he employs, citing the evidence available to him. The employee must comment on this and, if necessary, provide evidence. If the employee has no personal knowledge of the facts alleged by the employer, he or she can rely on the evidence provided by the employer and present the evidence known to him that, contrary to the employer’s statements, the threshold has been reached. According to Section 139 ZPO, the person primarily obliged to provide evidence must be informed by the court of the possibility of using the evidence specified by the opponent if he has clearly overlooked it.
d) Ordinary termination notice within the framework of the KSchG
According to the established case law of the Second Senate, operational requirements for termination in the sense of: § 1 para. 2 KSchG arise from internal company circumstances (entrepreneurial decisions, such as rationalization measures, conversion or restriction of production) or external reasons (e.g. lack of orders or decline in sales).
These operational requirements must be “urgent” and make termination necessary in the interests of the company. The termination must be unavoidable due to the operational situation. The relevant point in time for assessing the legality of a termination is when it is received. According to a ruling of February 13, 2008 ( 2 AZR 543/06 ), an intended operational or departmental shutdown can, in exceptional cases, turn out to be an urgent operational requirement in the sense of: § 1 para. 2 KSchG if the developments relevant to the future loss of the employee’s employment have already been determined at the time of termination. To do this, the organizational decision leading to the termination must have been finally made when the termination is received and the closure of the company or the company department must have already taken on recognizable forms from the perspective of the employment contract parties at the time of termination. Therefore, a dismissal due to the closure of a company is not socially justified if the employer has only considered the decision to close but has not yet finally made it. Therefore, a dismissal due to the closure of a company is not socially justified if the employer has only considered the decision to close but has not yet finally made it. Then there is no unconditional and final intention to shut down.
If a termination is nevertheless given, this is an invalid so-called “termination of reserve”. These principles also apply to non-profit companies participating in the market. Regarding the internal circumstances that give rise to an operational requirement for termination in the sense of: § 1 para. 2 KSchG, according to a decision of the Second Senate of March 13, 2008 ( 2 AZR 1037/06 ), this also includes the entrepreneur’s decision to no longer have certain tasks carried out by employees but by freelancers in the future. It is covered by the freedom of enterprise and is not abusive if an employer decides to no longer carry out tasks itself using its own employees, but to have them carried out by third parties. The law does not force market participants to cover the need for services exclusively through employment contracts.
Rather, he can use any legally permissible contract type. The prerequisite for the effectiveness of the termination is that the new contractual relationships are actually and not just apparently freelance work. The Senate rejected the plaintiff’s appeal because, according to the findings of the State Labor Court, the defendant employer had actually decided to have the tasks of a “mosquito attacker” of attaching advertising posters to control cabinets carried out by freelance employees in the future. The judgment of the Second Senate of April 23, 2008 ( 2 AZR 1110/06 ) was also based on a business organizational decision to outsource activities. Such a decision, which affects the employment options of the terminated employee, does not need to be examined for its legal justification or expediency, but only for whether it is obviously unobjective, unreasonable or arbitrary. A business organizational decision that has been made and actually implemented is based on the presumption that it was made for objective reasons and that there was no abuse of law.
Therefore, in the dismissal protection process, the employee must generally explain and, in the event of a dispute, prove the circumstances from which it should emerge that the internal structural measure taken is abusive because it is obviously unobjective, unreasonable or arbitrary. In the reasons for the judgment, the Senate pointed out that it is, for example, abusive to force an employee out of the company through the formation of separate company organizational structures while the need for employment remains unchanged, by leaving the actual work processes and the hierarchical instructions as such untouched and only, to a certain extent, pro forma , be fitted into legal structures designed solely for this purpose.
According to the established jurisprudence of the Second Senate, protection against dismissal is not related to the company. Before issuing a dismissal for operational reasons, the employer is generally not obliged to accommodate the employee in the company of another company. However, in exceptional cases there may also be a group-related obligation to continue to work. This applies, for example, if another group company has expressly agreed to take on the employee, and especially if such an obligation arises directly from the employment contract or another contractual agreement or from past practice. Another prerequisite for a cross-company obligation to continue to work is that the previous employer has a decisive influence on the “transfer”.
The mere fact that a shareholder can exercise significant influence over several or all companies in the group is not sufficient to assume that protection against dismissal is exceptionally extended to the group. If a municipality makes use of the option of transferring the office of equal opportunities officer to a volunteer in the future, there is an urgent operational need to terminate the employment relationship with the equal opportunities officer who was previously employed full-time. The Federal Labor Court decided this in its judgment of Decided on September 18, 2008 (2 AZR 560/07). If, in the event of a termination due to a change in the company, the employees who are to be terminated are named in a reconciliation of interests between the employer and the works council, in accordance with Section 1 Para. 5 Sentence 2 KSchG, the social selection of employees can only be checked for gross errors. A social selection is grossly flawed if there is an obvious, obvious, serious error and the balance of interests lacks any balance. This depends on the objective interpretation result. In the case decided on January 17, 2008 ( 2 AZR 405/06 ), the differences between the social data of the plaintiff and the employee who was not terminated were only marginal, so that there was no “gross” deviation.
The question of whether the employer can rely on the entries in the income tax card when selecting social benefits could remain open. However, the Second Senate pointed out in the reasons for the judgment that according to Section 1 Para. 3 Sentence 1 KSchG the maintenance obligations under family law must be taken into account. Since the child-related entries on the income tax card only say a limited amount about the existence of these family law relationships, it stands to reason that Section 1 Para. 3 Sentence 1 KSchG does not refer to the child allowances entered in the income tax card, but rather to the actual data. The needs of practice are adequately taken into account in that the employer can rely on the data known to him if he has no reason to believe that it could not be correct. In its judgment of November 6, 2008 ( 2 AZR 701/07 ), the Second Senate made it clear that the prohibitions of discrimination in the General Equal Treatment Act (§§ 1 10 AGG) also apply within the framework of protection against dismissal under the Dismissal Protection Act. A termination that violates a ban on discrimination can therefore be socially unfriendly and therefore ineffective (§ 1 KSchG).
The ban on age discrimination (Sections 1, 10 AGG) does not prevent age from being taken into account in the context of social selection (Section 1 Paragraph 3 Sentence 1 KSchG). The formation of age groups in social selection (Section 1 Paragraph 3 Sentence 2 KSchG) is also permitted under the AGG. A breach of contractual obligations arising from the employment relationship is particularly suitable as a reason for termination due to conduct, although fault is usually required; The employee must be responsible for the disruption in performance. Poor performance based on breaches of duty can also justify ordinary termination. The employee must work to the appropriate extent of his or her personal performance. Whether a service is to be viewed as poor performance is determined by the contractual agreements between the parties. If, as is usually the case, the quantity and quality of the work is not described in more detail in the contract, the content of the performance promise is based on the work content to be determined by the employer by exercising the right of direction and on the personal, subjective performance of the employee.
The employee must do what he is supposed to do and do it as well as he can. Whether the employee fulfills this obligation cannot always be determined by the employer based on objective criteria. In this respect, the rules of the graduated burden of presentation apply. The Second Senate emphasized this again in its judgment of January 17, 2008 ( 2 AZR 536/06 ). In the event of termination due to the employee’s poor quality performance, it is initially the employer’s responsibility to present what he can know about the performance deficiencies that have occurred, about the number of errors, the type and severity and consequences of the employee’s defective work performance. If the employer can demonstrate that the employee has, over the long term, significantly exceeded the average frequency of errors of all employees engaged in comparable work, this may be an indication that the employee is reproachably violating his contractual obligations.
However, since the comparison of average error rates does not in itself provide sufficient information as to whether the relationship between performance and consideration is severely impaired by the faulty work of the terminated employee, the employer must provide further evidence of the circumstances. Based on the actual number of errors, the type, severity and consequences of the employee’s incorrect work performance, it must be demonstrated in more detail that the long-term significant exceedance of the average error rates based on the overall circumstances indicates that the employee is reproachably violating his contractual obligations. If the employer explains this in the process, the employee must explain why he or she is able to perform to the fullest despite significantly below-average performance.
e) Extraordinary termination
According to the established case law of the Second Senate, not only a proven breach of contract, but also the serious suspicion of a criminal act or other misconduct can constitute an important reason for extraordinary termination. A termination on suspicion occurs if and to the extent that the employer justifies his termination by saying that the suspicion of (unproven) criminal or contractual behavior has destroyed the trust necessary for the continuation of the employment relationship. Termination on suspicion is permissible if strong suspicions are based on objective facts, these suspicions are likely to destroy the trust required for the continuation of the employment relationship, and the employer has made all reasonable efforts to clarify the facts, in particular to give the employee the opportunity gave a statement. The Second Senate dealt in detail with the requirements for a proper hearing of the employee before the termination is announced in a judgment of March 13, 2008 ( 2 AZR 961/06 ). The employee must be heard as part of the necessary clarification of the facts. Their scope depends on the circumstances of the individual case. The hearing must relate to a tangible issue. The employee must have the opportunity to dispute certain facts limited in time and space or to point out facts that invalidate the suspicion and thus contribute to shedding light on events that are in the dark for the employer. In the reasons for the judgment, the Senate emphasizes that the employer is required to be heard solely for the sake of this clarification. On the other hand, it is not intended to delay the clarification and obscure the truth as a procedural complication. There is no culpable violation of the duty to be heard if the employee was not prepared from the outset to respond to the allegations against him or to contribute to the clarification to the best of his ability. If the employee immediately declares that he will not comment on the accusation and does not give any relevant reasons for his refusal, then the employer does not have to inform the employee in more detail about the suspicions during his hearing. If the employee’s knowledge of certain facts is important during the hearing, the knowledge of an authorized representative cannot be attributed to the employee. Hearing the employee before a dismissal on suspicion is made is intended to give the employee the opportunity to refute the suspicion that exists against him. This is only possible if the employee has personal knowledge of the allegations made against him. The application of the civil law of representation is not an option.
f) Notice of changes
If, in the event of a change of termination, the offer of change is intended to change not only the activity (obligation to perform work) but also the consideration (remuneration), both elements of the offer of change must be measured against the principle of proportionality. If the amount of remuneration for the changed activity does not arise automatically from a collective agreement or a remuneration regulation drawn up by the employer, but rather the employer has freely negotiated the salaries of all comparable employees, it must be examined in accordance with the principles of graduated presentation and burden of proof whether this is the case The remuneration specifically offered to the employee takes his protection against changes into sufficient account. If, in the event of a change of termination, the offer of change is intended to change not only the activity (obligation to perform work) but also the consideration (remuneration), both elements of the offer of change must be measured against the principle of proportionality. If the amount of remuneration for the changed activity does not arise automatically from a collective agreement or a remuneration regulation drawn up by the employer, but rather the employer has freely negotiated the salaries of all comparable employees, it must be examined in accordance with the principles of graduated presentation and burden of proof whether this is the case The remuneration specifically offered to the employee takes his protection against changes into sufficient account. This was decided by the Second Senate in its judgment of April 3, 2008 ( 2 AZR 500/06 ). The employer only has to place the employee into the freely negotiated remuneration structure, taking into account his protection against changes.
If he offers the employee remuneration that is noticeably below the average remuneration paid, he must explain what other considerations led him to set this low remuneration and to what extent the existing protection against changes is sufficiently taken into account. If the remuneration offered is in the upper range compared to that of the other employees, there is initially a presumption that the remuneration offered can be reasonably accepted by the employee. The employee must then present further aspects which, taking into account his protection against changes, require higher remuneration for his changed activity.
g) Special protection against dismissal for severely disabled people
If the employer terminates a severely disabled employee knowing that he is a severely disabled employee, which can also be based on the obvious nature of the disability, without first obtaining the necessary consent from the Integration Office for the termination in accordance with Section 85 SGB IX, the employee can claim the invalidity of the termination up to the limit assert the forfeiture in court.
According to a judgment of the Second Senate of February 13, 2008 ( 2 AZR 864/06 ), in accordance with Section 4 Sentence 4 KSchG, the three-week filing period in accordance with Section 4 Sentence 1 KSchG only begins with the announcement of the authority’s decision to the employee in such cases . If the employer is not aware of the employee’s severe disability or equal status when the termination is given and has therefore not applied for the approval of the Integration Office, the employee must apply for this within three weeks of receipt of the termination in order to maintain his special protection against dismissal in accordance with Section 85 SGB IX Special protection against dismissal is invoked.
If the employee does not inform the employer of his severely disabled status or his equal status in a timely manner, he can no longer rely on the special protection against dismissal and, upon expiry of the deadline for bringing an action under Section 4 Sentence 1 KSchG, the actual ground for invalidity according to Section 134 of the German Civil Code in conjunction with Section 134. § 85 SGB IX healed because of § 7 KSchG. Section 4 Sentence 4 KSchG does not apply because a decision was not necessary and therefore could not be announced to the employee. The same applies if the employee informs the employer of their severely disabled status or their equal status within three weeks of termination. He can then rely on the special protection against dismissal, but at the same time he must comply with the deadline for filing a complaint in Section 4 Sentence 1 of the KSchG, because at the time of receipt of the notice of termination the employer was not aware of the special protection against dismissal and could not apply for consent.