Applicability of the Dismissal Protection Act
For the protection against dismissal under § 1 of the Dismissal Protection Act (KSchG) to take effect, the Dismissal Protection Act must first be applicable.
The scope and applicability of the KSchG follow from §§ 1, 14, and 23 to 25 of the KSchG.
According to this, an employee is protected from an unfair dismissal if:
- The employment relationship has existed in the same company or enterprise for more than six months without interruption, and
- The company regularly employs more than 10 employees, excluding trainees.
- If the employment relationship of the employee existed before December 31, 2003, the Dismissal Protection Act also applies if the company employs more than five employees, excluding trainees, who also belonged to the company as of December 31, 2003.
At first glance, this regulation seems to clearly indicate the applicability of the Dismissal Protection Act.
Proper Determination of the Number of Employees
However, the challenge lies in determining how many employees were employed at the time of dismissal. Employees are not counted on a per-head basis but according to their weekly working hours.
This means that employees with regular weekly working hours up to:
- 20 hours are counted with a factor of 0.5,
- More than 20 but no more than 30 hours are counted with a factor of 0.75, and
- More than 30 hours are counted with a factor of 1.
The following chart illustrates this more clearly:
Additional Challenges in Calculating the Number of Employees
Additional issues in calculating the number of employees for the applicability of the Dismissal Protection Act can arise because some employees should not be counted in the calculation at all.
For instance, trainees, managing directors, or the business owner are not counted when determining the number of employees.
According to the case law of the Federal Labor Court, the burden of proof for reaching the required number of employees is tiered (see Federal Labor Court, judgment of June 26, 2008, Az.: 2 AZR 264/07).
According to this, the burden of presentation and proof initially lies with the employee, who must provide all known indications that the company is not a small business. After that, the employer must provide a full explanation of the number of employees.
If, after evidence is gathered, it remains unclear whether the required number of employees for the applicability of the Dismissal Protection Act has been reached, this doubt falls to the detriment of the employee.
Employees Are Also Protected If the Dismissal Protection Act Does Not Apply
Even if the Dismissal Protection Act does not apply, this does not mean that the employee is unprotected against the employer’s behavior.
Where the provisions of the Dismissal Protection Act do not apply, employees are protected by the civil law general clauses (§ 242 of the German Civil Code – BGB) against dismissals that violate good faith or morality.
The principle of good faith (§ 242 BGB) forms an inherent limitation to all rights, legal situations, and legal norms. In such a case, balancing the constitutional rights of contractual freedom (freedom to dismiss) against the rights to dignity and personal development must be considered.
When conducting such an examination, it is important to note that small businesses were deliberately excluded from the Dismissal Protection Act by the legislature.
Thus, an indirect extension of protection against unfair dismissal through general clauses is not possible. A general requirement for just cause in dismissals would be too far-reaching, as this would effectively mean the applicability of the KSchG.
Protection of employees under civil law general clauses, therefore, only applies in exceptional cases:
- Dismissal due to a criminal act of the employee, although the employer did not make every reasonable effort to clarify the facts (Federal Labor Court ruling of September 13, 1995, Az.: 2 AZR 587/94).
- Dismissal of an employee due to their homosexuality during the probationary period (Federal Labor Court ruling of June 23, 1994, Az.: 2 AZR 617/93).
- Dismissal of an employee who has worked for 18 years in a small business and has a family, although two colleagues are significantly younger and have been with the company for a shorter time (Federal Labor Court ruling of February 21, 2001, Az.: 2 AZR 15/00).
Important Notice:
The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, liability and guarantees are excluded.
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