Unfair Dismissal Claim Berlin | Employment Lawyer Andreas Martin

Unfair Dismissal Claim - Your Employment Lawyer in Berlin - Information on Termination and Employment Protection

On this page you will find the answers to your questions. In particular, how to effectively defend yourself against an employer's termination and why an unfair dismissal claim to the Berlin Labour Court is often the first and only effective step towards severance pay or continued employment. In most cases, severance pay is precisely the goal of terminated employees. I frequently handle cases from Prenzlauer Berg or Berlin-Lichtenberg, where terminations and unfair dismissal claims are particularly common.

Employment Lawyer in Berlin Pankow - Prenzlauer Berg

As an Employment Lawyer in Berlin (branch office), I have been representing Berlin and Brandenburg clients in employment protection proceedings before the Berlin Labour Court and the Berlin-Brandenburg Regional Labour Court for years.

Despite the carefully prepared information, this cannot replace legal advice in employment law; you should bear this in mind.

After receiving a termination from your employer, you should remain calm and carefully consider what goal you want to achieve. If you're considering alternatives to court proceedings, you might also explore a termination agreement with your employer.

The following points regarding termination and unfair dismissal claims should be considered:

1. Terminated employees generally have no direct entitlement to severance pay from their employer.

2. The unfair dismissal claim is often the only way for employees to achieve severance pay or continued employment.

3. With an unfair dismissal claim, employees must challenge each individual termination by their employer with a separate unfair dismissal claim.

4. The filing deadline of 3 weeks from receipt of the termination must be strictly observed.

5. If the employer has their registered office in Berlin or the employee has worked predominantly in Berlin, the Berlin Labour Court has local jurisdiction for the claim.

6. Severance payments are nonetheless often paid by employers to avoid losing an employment protection case.

An unfair dismissal claim is a legal action with which employees defend themselves against an unjustified termination before the locally competent Labour Court. Only this legal remedy is generally available. A claim for severance pay can only rarely be filed.

Purpose of the claim

The claim aims to have the Labour Court establish that the employment relationship was not terminated by the employer's dismissal and continues beyond the termination date under the original conditions. The claim is therefore not directed at payment of severance pay.

The specific declaratory application

It is to be established that the employment relationship existing between the parties will not be terminated by the defendant's dismissal dated ...

The general declaratory application:

It is to be established that the employment relationship between the parties was not ended by other termination events and continues unchanged beyond ...

The unfair dismissal claim is directed against the employer.

Employment contract and employer

Who the employer is normally results from the employment contract. For legal entities, the representation relationships must be specified. For example, a GmbH (limited liability company) is represented by a managing director.

Claim against multiple parties

If there are doubts, clarification should be sought through a lawyer regarding who should be sued. In case of doubt, the lawyer will file the unfair dismissal claim against multiple parties who could be considered as employers and then - once clarification is certain - withdraw the superfluous applications.

What happens when suing the wrong employer?

Basically, a claim can be subsequently amended and directed against the new defendant, but the problem is that by naming the wrong party, i.e., incorrect designation of the employer, the filing deadline is not met. This means that if it turns out after the 3-week deadline that the wrong person was sued, then a new claim against the correct employer won't help either, since the 3-week deadline has already expired and the termination is thus no longer challengeable.

What can be done if you don't know exactly who the correct employer is?

If multiple parties could be considered as employers, the unfair dismissal claim should as a precaution be filed against multiple parties. According to the Federal Labour Court, it's also possible to file an unfair dismissal claim alternatively against another party.

Heading

Who the employer is normally results from the employment contract. For legal entities, the representation relationships must be specified. For example, a GmbH is represented by a managing director.

The heading of the claim consists of the precise designation of the parties. It's important here that the employer is precisely designated. This also applies to the legal form of the employer. The address must also be correctly stated here, otherwise the claim cannot be served promptly by the court after filing.

Claim application

The application for the unfair dismissal claim states that it should be established that the employment relationship existing between the parties will not be terminated by the dismissal dated ... effective ...

Furthermore, it's advisable to also make a general declaratory application that the employment relationship is also not ended by other termination events and continues beyond the expiry of the notice period.

Justification of the claim

The unfair dismissal claim must be justified; in particular, for a coherent justification, submissions about the employment relationship, how it is structured, and also about the applicability of the Employment Protection Act, if the employee wants to rely on it, are required. Furthermore, it must be submitted that a dismissal by the employer took place and when this was served and that this is being challenged with the claim and is invalid/socially unjustified.

Especially when a lot is at stake for the employee, it's actually essential that the claim be filed by a lawyer. Only this ensures that all requirements and formalities are met.

Signature

The claim must be signed by the employee who files it themselves. From January 1, 2022, lawyers can only file unfair dismissal claims electronically (via the special electronic lawyer mailbox/beA) with the Labour Courts. Electronic filing, for example by email, is explicitly not possible for citizens. Such a claim is deemed not to have been filed. The written form must therefore be strictly observed!

The chances for filing a claim against an employer's termination increase significantly if the Employment Protection Act applies to the employment relationship.

Employment Protection Act and grounds for dismissal

The employer then needs grounds for dismissal for ordinary termination. Three grounds for dismissal are available under the KSchG:

• dismissal for personal reasons,
• dismissal for conduct-related reasons, or
• dismissal for operational reasons.

Applicability

The Employment Protection Act applies when the employment relationship has existed for longer than 6 months and more than ten full-time employees excluding trainees work in the employer's establishment.

Threshold value according to § 23 para. 1 KSchG

Since not all employees work full-time, there's a specific formula under the Employment Protection Act for how part-time employees are calculated for this threshold.

The following applies:

Example:

In the employee's establishment, five employees work 40 hours per week, three employees only 10 hours, and two work 30 hours. What is the threshold value according to § 23 KSchG?

The calculation is not difficult. The five employees working 40 hours per week count with value 1. The three employees working 10 hours each count with value 0.5, totaling 1.5. The two employees working 30 hours count with value 0.75, totaling 1.5, since they work 30 hours and not more than 30 hours. In total, this results in a threshold value of eight employees (5 + 3), and this means that the Employment Protection Act does not apply. An exception applies only to long-term employees, but this rarely occurs in practice anymore.

As explained above, employees do not automatically receive severance pay after termination. In very rare cases is there entitlement to severance pay.

To obtain severance pay, employees must exert certain pressure on their employer. This generally only works by filing a claim against the employer's termination to the Labour Court. In the settlement hearing, this often leads to a severance agreement. However, there is no guarantee for this.

1. file unfair dismissal claim in time
2. gather information
3. negotiations with employer in settlement hearing
4. negotiate severance pay before the Labour Court in settlement hearing

Severance payment cannot be reliably predicted. The reason is that while it's generally true that employers with poor chances in employment protection proceedings will also offer severance pay, there is no certainty that employers will actually behave this way.

Good prospects of success

The prospects of success in employment protection proceedings can usually be roughly assessed by lawyers based on the facts described by employees. However, what trump cards employers might still have cannot be known by lawyers at the time of filing the claim. This will only become apparent during the course of employment protection proceedings. The better the chances of success for employees, the greater the probability of payment of appropriate severance pay.

Poor prospects of success

If employees' chances in employment protection proceedings are poor, employers will offer no severance pay, as they will likely win the employment protection proceedings with high probability. Employees have poor cards when the Employment Protection Act does not apply, for example during the waiting period/probation period or in small businesses.

Withdrawal of termination

But even if the chances in employment protection proceedings are quite good for employees, this doesn't necessarily mean that employers will definitely offer severance pay. There are also employers who, for example, would prefer to "take back" employees rather than offer severance pay. Here it can be expected that employers will "withdraw" the termination. Such termination withdrawal amounts to an offer to continue the employment relationship. Whether an employer will behave this way can only be predicted to a limited extent.

Berlin Labour Court has local jurisdiction for claims against employer dismissal in two cases:

• the employer has their registered office in Berlin
• the employee has predominantly performed their work in Berlin

Right of choice in employee claims

If multiple Labour Courts could have local jurisdiction, then employees can choose at which court they file their claim.

Example

The employer has their registered office in Potsdam (Brandenburg) but the employee worked predominantly in Berlin (Prenzlauer Berg). Here the employee can choose whether to file the unfair dismissal claim with Potsdam Labour Court or Berlin Labour Court. Both Labour Courts have local jurisdiction. The employee has the choice.

Claims against employer dismissal must be filed with the Labour Court within three weeks after receipt of dismissal by the employee. The deadline therefore begins with receipt of dismissal by the employee. Legally, though not entirely precisely, receipt can be described as service.

Receipt when present

When present, i.e., when handing over the dismissal, the dismissal is received immediately. The day of handover is therefore the beginning of the deadline.

Receipt when absent

For service when absent, for example by insertion into the mailbox, the beginning of the deadline is the day when knowledge could normally be expected under normal circumstances. For a mailbox at normal postal delivery times, i.e., in the morning and early afternoon, the dismissal is still received the same day, so the deadline begins on the day of insertion.

Example

The employer places the dismissal in the employee's mailbox on June 2, 2021 through a witness. The employee only reads the dismissal on June 4, 2021.

When does the filing deadline begin?

The deadline already begins with insertion on June 2, 2021. It's irrelevant when the employee reads the dismissal or takes it from the mailbox. Therefore, the deadline for filing the unfair dismissal claim expires on June 23, 2021, i.e., three weeks later.

Dismissal during vacation or illness

This applies even when the employee is in hospital or on vacation at the time of insertion of dismissal into the mailbox. Independent of the question of receipt, dismissal during vacation or employee illness is generally permissible.

Basically, employees can then no longer defend themselves against dismissal, but employees have the possibility, if they unintentionally missed the deadline for filing unfair dismissal claims, to apply for subsequent admission of the claim against employer dismissal according to § 5 Employment Protection Act. Simultaneously with the application, the unfair dismissal claim must naturally also be filed.

Subsequent admission of unfair dismissal claim

Grounds for subsequent admission can basically be that the employee was prevented due to serious illness. Mere hospitalization is normally not sufficient to achieve subsequent admission, since employees can also engage a lawyer from hospital, for example by telephone. Subsequent admission also comes into consideration if, for example, the employee receives dismissal during vacation and is not at home but abroad. But here too the requirements are strict.

Before Labour Courts in the Federal Republic of Germany, including Berlin Labour Court, there is no requirement for legal representation. This means employees can basically represent themselves and can file unfair dismissal claims themselves. That chances without a lawyer in employment protection proceedings to negotiate severance pay are lower than with a lawyer is obvious.

Lack of legal protection insurance

However, there are also cases where, for example, filing claims against employer dismissal is economically risky, particularly when there is no legal protection insurance for employment law and the employee has not been working in the establishment for very long.

Cost bearing for lawyer costs according to § 12 a ArbGG

It should also be noted that employees must always bear their own lawyer costs in first instance. This applies even if they win the proceedings. There is no cost reimbursement. This is regulated in § 12 a of the Labour Court Act (ArbGG).

Regarding costs, distinction must be made between court costs and lawyer fees.

Court costs

Court costs in employment protection proceedings are subject to some special features. These don't need to be paid in advance and are eliminated with settlement or claim withdrawal.

Lawyer costs

Lawyer costs are borne by each side themselves, both out of court and in court (1st instance), regardless of winning or losing the case. Lawyer fees increase with settlement and are governed by RVG (Lawyer Remuneration Act) and the value in dispute set by the court. The value in dispute in employment protection proceedings is generally determined by quarterly gross earnings of the employee (3 gross monthly incomes). With additional applications in employment protection proceedings, the value in dispute can increase (e.g., with continued employment application). However, this is merely a tabular value. Lawyer fees can then be read from a table based on the value in dispute.

Examples of lawyer fee amounts

The lawyer fees in the table are minimum lawyer fees according to RVG. These can increase through additional factors, such as additional applications in proceedings or through multiple settlements.

🎙 Podcast: "I waive filing an unfair dismissal claim"

Many employees hastily sign a waiver of unfair dismissal claims – often a serious mistake. In this podcast episode, I explain what it means and what risks arise.

🔗 Listen to Podcast on Spotify

📞 Contact & Consultation

Employment Lawyer Andreas Martin 📍 Specialist Employment Lawyer

📍 Storkower Straße 139 b, 10407 Berlin

📞 Phone: 030 74923060

📠 Fax: 030 74923818 📧 Email: info@rechtsanwalt-arbeitsrecht-in-berlin.de

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