The employer may limit the employment contract to two years, in case of a new employment relationship.
The following conditions must be respected for shorter time limits:
- The company has only temporary needs for work.
- The employee is hired following an education or study. This facilitates the transition to subsequent employments.
- It is a place of representation (pregnancy or leave of absence)
- The nature of the work performance justifies the time limit.
- The time limit has been allowed.
- Reasons in the person of the employee justifying a time limit.
- The employee is remunerated from the budget. These are intended for fixed-term employment under budgetary law and the employment corresponds to his remuneration.
- The term is based on a court settlement.
- The employee is at least 58 years old on the first working day, i.e. at the beginning of the employment contract.
- There was no previous employment relationship between the employee and the employer.
Form and content of a time-limited employment
The employer must stipulate the end of the employment contract in writing; otherwise the term will be ineffective.
Within a period of three weeks, the employee has to react if he wants to appeal to this decision before the Labor Court (Arbeitsgericht). The three-week period begins with the end of the employment relationship. If he does not react during the three weeks, the term of his employment contract becomes effective.
Extraordinary and immediate terminations can conclude the employment relationship without observing particular deadline or periods of notice. Both employees and employers can terminate an employment relationship without previous notice. The prerequisite for an extraordinary termination of the contract is a particularly important reason for leaving.
When is the extraordinary and immediate termination of the employment contract legally effective?
- The person that is interrupting the employment relations has to present a notice of termination within two weeks after the important fact (reason for leaving) has been recognized. The notification has to be provided in written form;
- In addition, he/she must obtain a statement from the works council within three days;
- The employer must request the consent of the Integration Office to terminate the employment relationship with a severely disabled person;
- The employer must request the consent of the Public Health Department in order to terminate the employment relationship with a pregnant woman;
- The employer must file an application with the Labour Court in order to terminate the employment relationship with a member of the works council
- If the terminating party does not comply with the above-mentioned conditions, the extraordinary termination shall be forfeited.
An extraordinary termination is always the last step to take against an employee.
The regulations on protection against dismissal should give stability and security to the employment relationship. If all conditions for termination have been complied with in all points, the termination is considered effective.
Lawsuit against unfair dismissal
The employee may file complaint against unfair dismissal at the German Labour Court (Arbeitsgericht in German).
If the employee asserts that a termination is socially unjustified or is legally ineffective for other reasons, he has the chance to file a lawsuit within three weeks after the receipt of the written notice of dismissal.
In the event of dismissal for variation of the contract, legal action shall be taken in order to ascertain that the change in terms of employment is socially unjustified or legally ineffective for other reasons.
If the employee has lodged an objection with the works council, he shall enclose the statement of the works council to the lawsuit documentation.
Insofar, as the termination requires the approval of an authority, the appeal-period for bringing the matter to the Labour Court is not initiated until the decision of the authority has been notified to the employee.
Dismissal for variation of contract
If the employer terminates the contract and offers the employee a variation of their employment relationship, the employee has the option to accept this offer and understand that the dismissal is actually not socially unjustified. This reservation must be declared by the employer to the employee within the period of notice, at the latest within three weeks after receipt of the notice of dismissal.
Termination – opposition proceeding
If the employee considers the dismissal to be socially unjustified, he may lodge an objection at the works council within one week after his dismissal. If the works council considers the appeal to be justified, he has to try to reach an agreement with the employer. It shall communicate its opinion on the objection in writing to the employee and the employer upon request.
“Consider yourself on leave until further notice!” An exemption/leave of absence may be decided colloquially.
This means that the employer releases the employee from labor conscriptions for an undetermined period of time.
Consequences of an exemption from work:
- The employee can not comply with his work until a legal termination of the contract;
- The employee must stay away from the workplace;
- The employee may be entitled to compensation for damages.
Please consider that your entitlement to holidays and the overtime payment do not forfeit with the exemption from work.
The exemption may be the “elegant” substitute for an immediate termination. The employer can remove the employee from his / her position before the statutory period of notice.
The employee may object to the exemption:
- The works council can object to the exemption after the order of a decent termination of the employer.
- The employee can take legal action against the exemption before the Employment Court (Arbeitsgericht).
If you are interested in the formal and content related conditions of an exemption agreement, you can prevent possible disadvantages by requesting for more information in due time.