There are many examples where a termination is invalid. For example, an employer must always give notice of termination in writing; if he does not do so, it is invalid (§623 BGB). A notice of termination is likely to be deemed unfair if it was given to a pregnant woman during pregnancy and without the prior consent of the occupational health and safety authority (§17 Mother Protection Act). If there is a works council that was not consulted before the notice of termination was given then the notice of termination is also deemed to be unfair (§102 Works Constitution Act). If one of these cases applies to you, you can count on the success of the dismissal protection lawsuit.
But even in situations that are not so clear cut and obvious, it can be advisable to take legal action. Maybe you were dismissed under the pretext that you had committed a serious breach of duty, but it has turned out not to be true. Maybe you have been dismissed for operational reasons, while younger and less long-standing colleagues who do the same work as you have not been dismissed. Has your employer dismissed you for conduct-related reasons, but you have previously received only a vague warning for this alleged breach of duty? If any of these should be the case, you should doubt the effectiveness of the employer’s termination. In such cases, it is advisable to seek legal advice, since a lawsuit for wrongful termination can be promising in this case as well if it is well-argued.
As a rule, a so-called conciliation hearing takes place within two weeks after the complaint has been filed (§61a Arbeitsgerichtsgesetz/Labour Court Act). Often a settlement agreement is reached there. Employee and employer can agree on the termination of the employment relationship and on the payment of a severance payment. With a view to the settlement agreement, an action for unfair dismissal can therefore also be brought if it is clear to the employee from the outset that no continuation of the employment relationship is intended.
If no agreement can be reached, a chamber meeting is held before the fully occupied chamber. The time between the conciliation hearing and the chamber meeting is usually between three and five months. Before the chamber meeting is held, the employer is given the opportunity to respond to the complaint in writing. Thereupon the employee in the position has to reply in writing. Before the chamber, the parties can then try again to find a settlement. If this is not the case, the chamber will make a decision and the wrongful termination action will come to an end unless an appeal is lodged with the Regional Labour Court.
Right to Severance Pay?
In principle, the employer is not obliged to pay severance pay. Therefore, a severance payment is in principle based on a mutual agreement between the employer and employee. Exceptions are usually only found in two rare situations. The labour court may, upon application, terminate the employment relationship and order the employer to pay if the termination was unfair. The employee cannot reasonably be expected to continue the employment relationship. This is the case, for example, if the employer has made derogatory remarks about the employee. However, unreasonableness is not assumed lightly. Furthermore, the employer must be ordered to pay severance pay if the employment contract or similar stipulates that a dismissal for operational reasons leads to a claim for severance pay. A severance payment therefore usually results from a settlement.
Although the employee has in principle no legal claim to severance pay, the employer often agrees to such a settlement if they see a risk that they might lose the case. The consequence of this would be that they would have to pay wages to the employer in the period from the termination until the declared invalidity, although no work has been performed during this period (§615 BGB).