Federal Labour Court, 21.09.2017, Ref.: 2 AZR 57/17
If an employee wishes to assert that a dismissal is socially unjustified or legally invalid for other reasons, they must file an action for protection against dismissal with the competent labour court within three weeks of receiving the written notice of dismissal in accordance with Section 4 sentence 1 KSchG. The action must be aimed at establishing that the employment relationship has not been terminated by the dismissal. If the legal invalidity of a dismissal is not asserted in court in good time, the dismissal is deemed to be legally valid from the outset in accordance with Section 7 KSchG. An action for unfair dismissal brought late is generally unfounded and will therefore be dismissed.
Facts: Self-termination and possible legal incapacity
In this case, the plaintiff and the defendant disputed the validity of the plaintiff's own dismissal and her provisional continued employment. The plaintiff, who had been employed by the defendant since 1992, suffered from paranoid schizophrenia and was undergoing treatment in 2013. On 6 March 2015, she terminated the employment relationship, which was confirmed by the defendant. Further terminations followed in March and April 2015. In May 2015, the plaintiff again underwent inpatient treatment and a carer was appointed.
The carer informed the defendant that the plaintiff was legally incapacitated at the time of the termination, supported by a medical opinion. On 7 October 2015, the carer then requested that the dismissal be deemed null and void, which the defendant refused to do. On 10 December 2015, the plaintiff sued for a declaration that the employment relationship had not been terminated by the dismissal.
Judgment of the Federal Labor Court
The Federal Labour Court ruled in favour of the defendant and overturned the appeal judgement. The case was referred back to the Regional Labour Court for reconsideration. It was determined that the time limit for filing a lawsuit pursuant to Section 4 KSchG (Dismissal Protection Act) does not apply to employees' own dismissals. The deadline regulation serves to protect the employer in order to quickly clarify the legal situation of a dismissal. However, as the plaintiff gave notice herself, this provision did not apply. The court clarified that neither the time limit for bringing an action nor the fictitious effect of Section 7 KSchG was applicable to self-termination.
The issue of forfeiture of the right to sue was also addressed. A forfeiture can occur if, after a longer period of time, legitimate expectations arise that no further action will be taken. In the present case, however, no forfeiture could be assumed, as the defendant did not present any difficulties or problems in securing evidence due to the delay in bringing an action.
Legal incapacity and legal consequences
The central issue in this case was the plaintiff's possible legal incapacity at the time of termination. The Regional Labour Court had not sufficiently examined whether the plaintiff was actually legally incapacitated when she gave notice of termination. A medical opinion alone was not sufficient to establish this, as no "certificate of legal incapacity" was provided for by law. The legal incapacity would have to be confirmed by further evidence.
The court emphasised that only in the case of legal incapacity would the termination be null and void in accordance with Section 105 BGB. However, if the plaintiff was legally competent, her termination would be valid and the employment relationship would actually be terminated. The exact clarification of the plaintiff's legal capacity was therefore decisive for the outcome of the proceedings.
Source: Federal Labor Court
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