If a termination according to § 626 BGB is caused by behavior of the other party that violates the contract, then the latter is liable in accordance with § 628 para. 2 BGB is obliged to compensate for the damage caused by the termination of the employment relationship. Compensation for so-called dissolution damages fundamentally includes the obligation to place the claimant in the position he would be in if the employment relationship continued, because the claim under Section 628 Para. 2 BGB goes to the full interest in fulfillment.
It follows that the employer must compensate the employee for any lost earnings by way of compensation until the end of the regular notice period. In addition to this claim for damages due to loss of earnings, which is limited to the period of the fictitious notice period, there may be a claim for appropriate compensation to compensate for the loss of continued protection of the employment relationship in accordance with Sections 9, 10 and 13 KSchG. Due to the employer’s breach of contract, the terminating employee has waived the protection provided by the dismissal protection provisions. A claim for damages by the employee according to Section 628 Para. According to a decision of the Eighth Senate of May 21, 2008 ( 8 AZR 623/07 ), 2 BGB due to the loss of one’s job presupposes that the protection provided by protection against dismissal is lost.
The claim to compensation only exists if the Employment Protection Act has applied to the employment relationship and the employer should not have terminated the employment relationship itself at the time of the employee’s termination. These principles also apply to a works council member who is subject to special protection against dismissal under Section 15 KSchG. The one from Art. 33 para. 2 GG, an applicant’s right to transfer the advertised position or to repeat the selection decision presupposes that the sought-after public office is still available. This “application procedure entitlement” ends when the advertised position has been bindingly transferred to another applicant.
An applicant who is unsuccessful in the application process can claim damages in accordance with Section 280 Para. 1 BGB und § 823 Abs. 2 BGB iVm. Art. 33 Abs. 2 GG is due. If the position is filled during the legal process to enforce the application procedure claim, the lawsuit can be changed to a claim for damages. Such a change is permitted according to Section 264 No. 3 ZPO. The claim for damages will only be successful if the unsuccessful applicant is given the position in accordance with the principles of best selection in accordance with. Art. 33 Abs. 2 GG should have been transferred.
In the case decided by the Ninth Senate on February 19, 2008 ( 9 AZR 70/07 ), the requirements profile of a position to be filled required a scientific university education or equivalent skills and experience. The Senate decided that in such a case the proof of equivalence is not tied to a specific form. The equivalence only has to exist objectively. It is up to the employer how he compares the performance of the applicants, unless legal regulations prescribe a specific procedure.
The Senate also decided that for a position with personnel management tasks, the management style is a suitable selection criterion in accordance with. Art. 33 Abs. 2 GG represents. The employer alone decides whether he prefers a cooperative or directive management style. There is therefore no objection if he selects the applicant with the preferred cooperative leadership style despite their professional equivalence.