Aktualisiert am:
Federal Labor Court, March 12, 2015, Case No.: 6 AZR 82/14
The contractual relationship between an employee and an employer can be established and also terminated by a contract. Such a termination agreement must be concluded in writing according to Section 623 of the German Civil Code (BGB).
For the employer, a termination agreement can be a good way to avoid a legally uncertain dismissal and its often costly consequences. For an employee, however, there are many pitfalls to consider when drafting such a termination agreement to avoid costly mistakes.
Firstly, employees should ensure that the termination agreement includes a fair severance payment arrangement. The general rule in case law is that the severance should amount to half of a gross monthly salary per year of employment, if the Protection Against Dismissal Act (Kündigungsschutzgesetz) applies. However, if the employee has been previously harassed or otherwise disadvantaged, this should also be reflected in the severance amount.
Furthermore, employees must be aware that a termination agreement can trigger a blocking period for unemployment benefits. This blocking period can only be avoided if the termination agreement includes the following provisions:
- The dismissal was “clearly” indicated by the employer.
- The indicated dismissal is based on operational reasons.
- The indicated dismissal would take effect at the same time as the termination date in the termination agreement.
- The employer’s notice of termination adheres to the legally required notice period.
- The employee receives a severance payment of at least 0.25 and at most 0.50 salaries per year of employment due to the termination agreement. If the severance payment is higher or lower than this, the Employment Agency will only recognize an important reason (for the termination) if the dismissal would have been effective.
Often, a termination agreement also includes a waiver of claims, which obligates the employee not to take legal action against the employer. In the case discussed by the Federal Labor Court, the court had to decide whether a waiver of claims in a standard termination agreement was effective.
Background of the Case
The plaintiff had been employed by the defendant since 2001. On December 28, 2012, the parties signed a written termination agreement that ended the employment relationship on the same day without severance pay. Previously, the defendant had threatened the plaintiff with extraordinary dismissal and criminal charges because he had taken two instant soups from the stock without payment. The contract contained a clause including a waiver and waiver of claims.
Collective Agreement and Right of Withdrawal
The applicable collective agreement for the retail sector in North Rhine-Westphalia dated July 25, 2008, provides for a right of withdrawal for termination agreements under Section 11, Paragraph 10, which can be exercised within three working days. However, this right can be waived in writing. The plaintiff contested the termination agreement on the same day and requested a determination that the employment relationship continued, arguing that the threat of extraordinary dismissal was impermissible given his long-standing and previously trouble-free employment relationship.
Court Decisions in Detail
The Labor Court dismissed the plaintiff’s claim. On appeal by the plaintiff, the Regional Labor Court upheld the claim and declared the termination agreement invalid. However, the defendant appealed to the Federal Labor Court.
Decision of the Federal Labor Court
The Federal Labor Court overturned the appellate decision and referred the case back to the Regional Labor Court for further clarification. It determined that the validity of the right of withdrawal under the collective agreement did not need to be examined, as the plaintiff had not declared a withdrawal within the withdrawal period according to Section 11, Paragraph 10 of the collective agreement.
Waiver of Claims and Further Clarification
The Federal Labor Court found that the waiver of claims in the termination agreement generally deprived the plaintiff of the opportunity to legally contest the contract. This was only permissible if the threat of extraordinary dismissal was not unlawful. Since the Regional Labor Court had not sufficiently clarified this issue, it now had to determine whether the threat of extraordinary dismissal was unlawful.
In summary, the Federal Labor Court referred the matter back to determine whether the threat of extraordinary dismissal was unlawful and to what extent this affected the validity of the termination agreement.
Source: Federal Labor Court
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