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  Rechtsanwalt Bonn Dr. Palm

 

 

 

This site represents the german law office

Rechtsanwaltskanzlei Dr. Palm

located in Bonn-City/Germany near Cologne

Employment Law

or

Labor Law

Beethoven - Bonn´s local hero

We handle both employee and employer matters, including wage and compensation disputes, discrimination complaints, drafting employee manuals, employment contracts, noncompete and confidentiality agreements, trade secrets, and independent contractor agreements. What is employment law? 

Employment law or Labor law concerns the legal relationship between employers and employees.  The major sources of labour law are Federal legislation, collective agreements, works agreements and case law. Labor law determines the rights and obligations which arise out of an employment contract. The law regulating the relationship between an employee and an employer begins when an offer for employment is made by an employer to an employee. Labor law governs the entire relationship between employer and employee - starting with the hiring process, job duties, wages, promotions, benefits,  termination of the employment relationship and a lot of other issues. Generally, the contract of employment is concluded for an unlimited period.  The duration of fixed-term contracts must be set according to objective conditions such as a specific end date, the completion of a specific task, or the occurrence of a specific event. It must also in principle be based on the justification which are laid down in sec. 14 para. 1 which comprises motives like the temporary requirement of a certain type of work, a limitation in order to make the worker's access into professional life easier or the replacement of an ill employee. In other words: a complex matter with a lot of specific details. However, a fixed-term contract may be also lawful without justification, if it falls under one of two exceptional cases: If the employee wants to claim the ineffectiveness of a limitation, he must take legal action within three weeks after the agreed ending of the employment contract. Apart from this constellation the three-week-period of appealing should always be kept in mind! When concluding a labour contract the parties often agree on a probationary time of up to 6 months. During this period, the employee can be dismissed with notice of just 2 weeks.  However, the latter applies only to establishments regularly employing more than - regularly - ten full-time employees. Also, a worker must have completed a qualifying period of six months work without interruption to be eligible for protection under this law (Kündigungsschutzgesetz).

But, first of all forget about the british and american employment law system since the german law system is quite different. In comparison to the american employment law system the  german legal doctrine does not allow an employer or employee to terminate employment at any time, without any cause or reason, and without prior notice. Apart from this there are a lot of minor differences: Your employer, for instance, is under the rule of german law required to let you view your file. So it can give candid assessments of your job performance and the information provided must be accurate and be backed up. 

In the majority of constellations an employee is sheltered by the law in many aspects and may not be terminated at any time without cause. Generally, employees can therefore only be terminated for reasons specified in the law – especially refering to wrong behaviour or specific changes of the structures of companies. German labour law makes a strict distinction between ordinary termination (with notice), whereby the employment relationship is ended when the period of notice expires (sec. 622 Civil Code), and extraordinary termination (without notice). In the latter type of termination, the notification effects the immediate cancellation of the employment relationship (sec. 626 Civil Code). In both cases, termination at the initiative of the employer is limited by law. Extraordinary termination is a rare thing, difficult to stand up for, since employees should not lack a broad social security.

Periods of notice are stipulated by the law. The minimum statutory period is four weeks, and it is increased by one month each time the worker has completed his/her 5 th, 8 th, 10 th , 12 and 15 th year of working for the same employer. The maximum entitlement is seven months, after the worker has completed 20 years of service. However, years of service before the employee is 25 years old are not taken into consideration to calculate his entitlement to notice. Collective agreements may specify longer or shorter periods of notice, whereas individual contracts of employment may only specify longer periods of notice. As of 1st May 2000, notice must be given in writing in order to have legal effect.

Extraordinary dismissal is legally possible where there is an important reason which makes it, in good faith, unacceptable to continue the employment relationship until the end of the notice period, or in the case of a fixed-term contract of employment, the contractual date for its expiration. Typically it applies to serious misconduct, and is only possible within two weeks as of the moment when the notifying party learns about the facts that are decisive to terminate the employment relationship. In case of litigation the same party will be required to prove the facts on which the extraordinary termination is based.

Where there is a works council (“Betriebsrat”), the employer is obliged to consult it before every case of dismissal either with or without notice, even though the council's response is not binding on the employer. The works council has a period of three days, in case of summary dismissal and one week in case of ordinary termination to agree or declare reservations in writing, otherwise agreement is presumed by law. Termination without proper hearing of the works council is ineffective. In this realm of the employment law system a lot of mistakes occur. A worker who intends to challenge the validity of his termination must file a submission before a labour court within a time limit of three weeks as of the date he/she has received his/her notice. If the court is not convinced that either the ordinary termination is socially justified, or the extraordinary dismissal is for important reasons, it may order the worker's reinstatement, with back pay, unless it feels that such a measure is impractical, in which case it may order the employer to pay compensation. Special rules apply to collective redundancies in establishments employing more than twenty employees, which call for the consultation of the works council and the drawing of a social plan.  If a case goes to a court, the jugde will want the employer to show there was a good reason for firing the employee, and the employee was fired for that reason. The employment area is virtually exploding with lawsuits, claims, and new court decisions and statutes. The employment law jurisdiction, which includes also trade union disputes, is governed by the Labour Court Act (Arbeitsgerichtsgesetz). There are three instances, namely Local Labour Courts, Regional Labour Courts and the Federal Labour Court as the final instance. Any Local Labour Court is composed of one professional judge, who is chairman, and two honorary non-paid judges with the equivalent legal powers. What about the procedure? Proceedings concerning an individual employment relationship or any appeal of one by either side of the dispute lead to a judgement. They always start with a conciliatory hearing, because the Local Labour Court's first intention is an amicable settlement of the case. Proceedings for protection against dismissal are also given priority in the first instance (sec. 61a). A lot of procedures are finished in this state with a Compensation for dismissal, for example: The compensation for dismissal pursuant to §§ 9, 10 KSchG, § 3 No 9 EStG is 10.000 EUR. The employee is furthermore entitled to a written testimonial and there is a general settlement of claims. 

This procedure also includes litigation on the basis of unfair labor practices and discrimination. Prohibits discrimination in employment based on race, color, religion, sex and national origin. But there are laws that forbid certain kinds of mistreatment under certain circumstances. Victims of harassment at their workplace (Mobbing) should maintain records of all incidents including, date, time, place, names of offenders and witnesses. Victims should tell offenders to stop the sexual harassment. If the conduct continues, the employer should be notified, perhaps using the employer's complaint mechanism or grievance system. Employers must have a legitimate reason to dismiss their employees for "just cause." 

If you have been fired without a good reason or in violation of the law (e.g., discrimination), this could be a wrongful discharge and you can challenge your firing. We have extensive experience in counseling and representing employers with respect to claims of employment discrimination.  Your former boss does not have carte blanche to fire you and say just anything about you.

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Rechtsanwaltskanzlei Dr. Palm - Rathausgasse 9 - 53111 Bonn (Stadtmitte)

Telefon: 0228/63 57 47 oder 69 45 44 - Telefax: 0228/65 85 28 - Email

Copyright Dr. Palm - 2000 - Stand:27.06.2015