Termination agreement

In its judgment of February 15, 2007 ( 6 AZR 286/06 ), the Sixth Senate had to decide on the interpretation of a supplementary agreement to the employment contract as a termination agreement or as a subsequent fixed-term contract.

If a termination of the employment relationship with a delay of twelve months is agreed upon receipt of a regular notice of termination by the employer before the expiry of the legal action period, this is usually not a subsequent limitation of the employment relationship, but rather a termination agreement if no agreement is made according to the agreement There should be an obligation to perform work and at the same time processing modalities such as severance pay, issuing certificates and return of company property should be regulated.

However, if the termination agreement is contained in a contract that has been pre-formulated by the employer for a large number of cases and which, as a “supplement to the employment contract”, also regulates the employee’s transfer to an “independent operational unit”, this may be an unusual situation depending on the circumstances act in accordance with the mood. § 305c Abs. 1 BGB does not become part of the contract. In its judgment of July 19, 2007 ( 6 AZR 774/06 ), the Sixth Senate decided that the conclusion of a written management service contract between an employee and his employer can also include the mutual termination of the employment relationship.

The managing director service contract puts the contractual relationships between the parties on a new basis and creates numerous new rights and obligations for the employee under the GmbH Act. It must therefore be clear to an employee that his employment relationship ends with the conclusion of such a contract and his appointment as managing director. Subject to special circumstances in the individual case, there is no doubt within the meaning of Section 305c paragraph. 2 BGB, that an employee places his contractual relationships exclusively on this new contractual basis upon conclusion of the management service contract.

This also applies against the background of Section 623 of the German Civil Code (BGB), which came into force on May 1, 2000. If the termination of the employment relationship has not been expressly agreed, it must be determined by interpreting the written agreement made whether the intention to end the employment relationship by mutual consent was expressed in the written agreement. Circumstances lying outside the document may be taken into account if the relevant legal intention of the parties has found expression, even if only imperfectly, in the formal document. If the employee concludes a written service contract with the employer, which forms the basis for the appointment as managing director, the will of the contracting parties to terminate the previously established employment relationship is usually sufficiently clearly reflected in the written managing director service contract.