severance pay
According to the provision of Section 1a KSchG introduced in 2004, the employee is entitled to payment of a severance payment amounting to half a month’s salary per year of employment if the employer terminates the contract for operational reasons, the employee does not sue against the termination and the employer stands by the termination of the claim.
According to a decision of the Second Senate of May 10, 2007 ( 2 AZR 45/06 ), the entitlement to severance pay under this provision only arises upon expiry of the notice period. If the employment relationship ends at a previous point in time for another reason, the claim no longer arises and for this reason cannot be part of the assets transferred to the heirs in accordance with Section 1922 Para. 1 BGB. This follows from the wording, the history and the purpose of the regulation. In its judgment of June 19, 2006 ( 1 AZR 340/06 ), the First Senate decided that the creation of a claim for severance pay pursuant to Section 1a Para. 1 Sentence 2 KSchG, if the other requirements are met, this is not prevented by the fact that the employer informs the employee in the letter of termination of the expected amount and that this is lower than the statutory amount if the employer also indicates that he wants one Pay severance pay in the amount provided for by law.
This applies regardless of whether the claim arises as a result of a two-sided legal transaction based on an offer from the employer that was implicitly accepted by the employee by allowing the deadline for action to expire, or as a result of a unilateral legal transaction based on a corresponding declaration of intent by the employer, in which the expiry of the deadline for bringing a claim is considered purely factual circumstance occurs. If, from the recipient’s perspective, the indication of the quantified amount only serves to provide information about the severance payment amount that the employer considers to be correct, the employer’s legal declaration corresponds to the legal regulation. Whether the specification of a quantified amount is merely for information purposes or has a legal nature must be determined through interpretation. In its decision, the First Senate further stated that collective legal regulations to compensate for economic disadvantages resulting from a change in operations can provide for the creditability of benefits in accordance with Section 1a KSchG.
This does not violate the purpose of the collective nouns in question. Claims for severance pay according to Section 1a of the KSchG also serve to compensate for economic disadvantages due to the loss of a job. The regulation of Section 1a KSchG primarily aims to avoid dismissal protection lawsuits. However, the means provided by law for creating severance pay claims for the terminated employee serves the purpose of compensating for or mitigating the economic disadvantages of the job loss.