In the judgment of March 19, 2008 ( 5 AZR 429/07 ), the Fifth Senate dealt with the requirements for maintaining a two-stage exclusion period agreed in a formal contract. By filing a dismissal protection action, the employee asserts in writing all individual claims from the employment relationship that are threatened by the dismissal and are regularly due (protection of the first stage of a two-stage exclusion period).
If the employer’s general terms and conditions stipulate that claims rejected by the other party must be enforced within a period of three months in order to prevent them from forfeiting, filing an action for protection against dismissal is sufficient to prevent the expiry of the employee’s claims for default in acceptance, which depend on the outcome of the dismissal dispute (Maintenance of the second stage of a two-stage exclusion period).
A wording chosen by the employer as the user of the General Terms and Conditions, according to which claims must be filed, cannot be understood by an average employee who is not legally literate as meaning that only the filing of a quantified performance claim satisfies this requirement. Rather, he may understand them in such a way that every procedural dispute about the claim fulfills his obligation.