- 1 Special protection against dismissal during and after council elections
- 1.1 Dismissal – what should the boss, what is not?
- 1.2 As the boss of evading the law
- 1.3 Special protection against dismissal during and after council elections
- 1.4 dismissal of the electoral board and election initiators
- 1.5 Special protection against dismissal of election candidates
- 1.6 particularities
Dismissal – what should the boss, what is not?
Termination is the nightmare scenario par for most sufferers. Legally, the issue is very well controlled, you might think. Nevertheless, increasingly often to disputes in court. A mother of five, for example, is suing her former employer, she announced unlawfully operationally.According to social selection would actually have to go other employees in front of her. The judge must decide now. Many workers are not so brave and take unlawful dismissals in silence. But what are the limits of what the boss can? And how to protect yourself?
As the boss of evading the law
In said case, the mother of five, it would have at the seemingly dismissal for operational reasons must be an examination on the social status first. This factors such as age, job tenure, marital status and even children are transmitted through points in a ranking.
Who has the least to take responsibility must go first.Simply speaking. The mother of five would have been affected in this case, much later. Nevertheless, many employers use alleged compulsory redundancies to targeted employees get rid of. Be it financial reasons or personal.
The social selection is to serve as a protective mechanism and engages actually in all companies already from ten or more employees. As optionally must sometimes go the best worker. Clearly, many employers try to prevent and instead emphasize specific points.
When no social selection has taken place, the total compulsory redundancy usually just an excuse. Laws are all too often ignored. Most workers do not fight back anyway.
Tricks of Employers
But why not? The termination is usually preceded by a more strenuous and grueling process. No coincidence but a deliberate tactic of superiors to bring the workers to give up. By making the victim realizes that he is undesirable in his place, he will usually sometime anyway not go back and do not complain to reinstatement.
At least, the thought process. And unfortunately that works even in most cases.After anger and despair have gone by and exhaustion soft, the pressure is increased many times again.Namely, in the form of an indemnity offer. Happy even more than required by law and allegedly “only today” or “just this week” .
That encouraged to quickly “Yes” to say. Afterwards, an action no longer useful or Cancelled afraid instead of only increased the statutory severance obtain. So accept and go!
If this fails again, the not mean that the employer runs out of tricks. The social criteria can also be bypassed by selected people in time “transported out” will. What does that mean? You get a higher authority, be removed from the team and lose the comparison with disadvantaged colleagues in the social selection.
You are suddenly the only one on your level and thus also the first to have to leave. Fies, right? In the joy of promotion soon follows the sobering termination. And unfortunately this is still not all: The “achievers clause” favors another legal way to let out certain workers from the social selection. And then, if it is“special qualifications” concerns.
What do the lawyers?
Unfortunately, not even close to 100 percent of redundancies legally. The lawyers represent annually more former employees who complain against the dismissal. Ultimately, it is in any case an individual consideration. While a lawsuit is usually successful, but only if you view a severance successful.Only a few companies agree a severance analogy too.
On the contrary : Actually for both sides the best solution, but one takes into consideration that you are no longer really happy after the action in your previous job. Nevertheless, one or the other holds despite all to the final judgment by.
And he is successful, then the entire fee in recent months or years it will be paid retroactively. A real risk therefore for the employer, if this can not explain adequately the reasons for a lawful termination. Or the judge saw through the machinations and makes a settlement offer that will make you happy and your former employer extremely unhappy.
Thus, in principle a worker friendly termination right as it prevails in Germany. And in most cases actually worth a lawsuit. Do not be put off by early tempting offers. Many lawyers also recommend a claim for damages immediately afterwards to send.
to approach the moral path directly to an employee and to seek a mutually profitable solution in today’s business practices, according to experts, unfortunately, more and more become the exception.
The regularly council elections in 2015 are now behind the workforce and businesses. It is however expected that in the coming weeks and months individual cases the labor courts will occupy. Here not only the typical election contestation procedures are relevant, but also in individual labor legal point of throwing council elections often long shadows. This is especially true for unfair dismissal and the special protection against dismissal, election candidates and council members.
§ 15 para. 1, para. 3 and para. 3a KSchG to protect those involved in council elections before that employer about due to the candidacy for the council or the introduction of choice unpopular workers throughdismissal under pressure.
Candidates are campaigning have the possibility, if necessary, can also address sensitive issues, without fear of reprisals in the form of a termination by the employer. In addition, the scheme is in the interest of the employees in a prospective council election.
On the other hand, the possibility remains of the employer in case of serious breaches of duty by the candidate or works councilorextraordinary termination pronounce. However, such termination in practice is associated with great difficulties. Especially, a possibly einzuleitendes consent replacement procedures over several instances and easily take two years.
dismissal of the electoral board and election initiators
One of the first steps in establishing a council election is the formation of an electoral board. The Electoral Board is basically appointed by the incumbent council by resolution by a simple majority. If there is no works council as the election officer may gem. §§ 17, 17a WCA from general works, group works at a company meeting or at the request of at least three workers entitled to vote are appointed by the Labour Court.
Members of the Electoral Board may gem. § 15 para. 3 KSchG from the date your order until the announcement of the election result be terminated only for cause as defined in § 626 BGB and only with the consent of the incumbent council or after final replacement of the approval by the labor court.
In a period of 6 months after the announcement of the election result also comes just extraordinary termination into consideration. However, within this period, it does not require the consent of the incumbent council or its replacement by the Labour Court.
Applicants for a post in the election officers enjoy – unlike, candidates for staff council functions – no special protection against dismissal . This has in a recent ruling of 31.07.2014 the BAG – 2 AZR 505/13 – decided.This is not a case Candidates in the legal sense, the BAG.
The so-called. Initiators of the council elections enjoy special protection against dismissal. Herewith workers are meant to invite to a trade or election meeting or the appointment of the Electoral Board have applied by the Labour Court.
These workers can be terminated only for cause and with the consent of the incumbent council or in substitution to the approval of the Labour Court from the date of the invitation or the application to the announcement of the election result to.
If the election results announced, so continuing to produce effects dismissal applies for six months. During this time, continuous need for an important reason within the meaning of § 626 BGB for dismissal. By contrast, eliminates – as with election committee members – from the announcement of the election result, the requirement for approval.
Special protection against dismissal of election candidates
Key component of the special protection against dismissal in council elections is the special protection against dismissal of election candidates. Who is running for a seat on the council, can be terminated from the date of preparation of the nomination until the announcement of the election results only for good cause and with the approval of the Works Council and its replacement by the Labour Court.
From the date of notification of the election results, it is important whether the application was successful. However, this requires that the candidate is actually selected, ie, in particular having the six-month seniority pursuant to § 8 WCA.
If the candidates elected to the council, he is entitled, for the duration of the term of office of the special protection against dismissal of § 15 para. 1 KSchG to. That is, a termination is possible only for cause and with the approval of the Works Council and its replacement by the Labour Court.
Separating the council member from office, as the aftereffects dismissal of § 15 para 1 sentence applies. 2 KSchG. Cancellation is only possible for good cause for a period of one year after the termination of the mandate. One council approval is no longer needed during this period in turn.
Election to replace a member
Causes the election that the candidate is elected as a substitute member of the council, so it initially is the aftereffects dismissal according to § 15 para. 3 KSchG for a period of six months. During this period, only an extraordinary termination for good cause is permitted.
If the substitute member gem. § 25 para. 1 sentence 2 WCA acted for temporary prevention of an ordinary member of the works council, he is entitled, according to the time of operation, the full special protection against dismissal. § 15 para. 1 to the Consumer Protection Act.
Whether the employer knew of the mission or not is irrelevant. If the mission completed, is continuing to produce effects in accordance with protection against dismissal. § 15 para. 1 sentence 2 KSchG for a period of one year.
If unsuccessful, the application of the employee, it is from the date of notification of the election results at the after-effects dismissal protection for 6 months. Is then required although no approval of the works and their replacement by the labor court more.
A termination of the former election candidate is only exceptionally permitted for good cause. The same applies if the employee has been elected, but the choice does not accept.
The special protection against dismissal granted can not be protected workers but a completely free hand.The BAG has this 2013 (ruling of 08.29.2013 -.. 2 AZR 419/12) about decided that issues that arise during the existence of a special protection against dismissal, we can not expect to be relevant for a later detected resolution application pursuant to § 9 KSchG.
In case of dispute, the employer had issued a socially unjustified dismissal before entering the special protection against dismissal. The employee then applied under the regular contemporary council election for a seat on the council. As part of the council election campaign, the applicant published an election manifesto in which he the employer the humiliation of staff and bullying accused.
In dismissal process the employer had inter alia based thereon pursuant to a resolution request. § 9 KSchG asked. In the court decision on the dissolution petition of the special protection against dismissal of the employee had already ended again.
Therefore – according to the BAG – can basically support his resolution Request for incidents during the existence of the special protection against dismissal by the employer. The particular vulnerability of the worker as a candidate in a council election is to contribute to the material weight of the resolution appeal statement.
However, the reason for termination must not reach the weight of good cause within the meaning of § 626 BGB. Rather be sufficient that on the basis of incidents a prosperous continuation of employment is not to be expected.
The special feature of the case was that the special protection against dismissal had not yet and no longer existed at the initiation of dismissal procedure at its end. Anders would have to decide if the special protection against dismissal would have survived.
Then is to require in any case that the reason for dissolution reached the weight of good cause within the meaning of § 626 BGB and possibly further to advice the approval of the works or it will be replaced by the Labour Court for the effectiveness of the resolution request.