Review of dismissals and filing of actions for protection against unfair dismissal
The termination of an employment relationship is a turning point that calls for swift and considered action. We examine whether the dismissal can stand up formally and substantively, and represent you before the labour court. The aim is a solution that suits your professional and personal situation.
The key points at a glance
Three-week deadline
Under § 4 KSchG, an action for protection against unfair dismissal must be filed with the labour court within three weeks of receipt of the written notice of dismissal. If you miss this deadline, the dismissal is as a rule deemed effective – even if it could have been challenged on its merits. Late admission of the action is possible only in narrowly defined exceptional cases.
Form and procedure
Under § 623 BGB, a dismissal must be in writing with a handwritten signature. A dismissal by e-mail or messaging service is invalid. Where there is a works council, it must be consulted before every dismissal. Additional protective provisions apply to certain groups of people, such as pregnant women, employees on parental leave or persons with severe disabilities.
General protection against dismissal
The Dismissal Protection Act applies where the employment relationship has lasted longer than six months and the establishment regularly employs more than ten employees. Part-time employees are not counted per head but pro rata: as 0.5 with regular weekly working hours of up to 20 and as 0.75 with up to 30 hours (§ 23 Abs. 1 KSchG). The threshold of ten therefore refers to the number of employees converted into full-time equivalents. The dismissal must then be socially justified, i.e. based on reasons relating to the employee’s person or conduct, or on urgent operational requirements. In the case of dismissals for operational reasons, proper social selection is also required.
Extraordinary dismissal
Summary dismissal requires good cause that makes it unreasonable to continue the employment relationship until the end of the notice period. The employer must give notice within two weeks of becoming aware of the relevant facts. The three-week deadline for filing an action also applies to summary dismissal.
How we proceed
We first record the date of receipt and the deadline for filing. We then review the form, notice period, works council consultation, special protection against dismissal and the reasons given.
Together we clarify whether you wish to return to your job or achieve an orderly separation on reasonable terms. We then align the action and our arguments accordingly.
We file the action, prepare for the conciliation hearing and conduct settlement talks with the other side. If no agreement is reached, we represent you at the main hearing.
Frequently asked questions
Who bears the legal costs in unfair dismissal proceedings?
At first instance before the labour court, each party bears its own legal costs under § 12a ArbGG, regardless of the outcome of the proceedings. If you have legal expenses insurance that covers employment law, it will often cover the costs. We will be happy to clarify the cover for you. We will inform you of the expected costs before we begin work.
Do I have to register as unemployed immediately after a dismissal?
Yes. You must register as a jobseeker no later than three months before the end of the employment relationship. If there are fewer than three months between learning of the dismissal and the end of employment, within three days. Late registration can lead to a suspension of unemployment benefit, irrespective of whether you have filed an action.
Your contacts
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Gewürzmühlstraße 5 · 80538 Munich