Kündigungsschutz Archive - R&U

Bezahlter Jahresurlaub – kein Verfall von Urlaubsansprüchen

Stefan Selge — Tue, 14 Feb 2023 14:51:09 +0000

Sensation: ECJ rules in favor of employee

Claiming vacation entitlements after 3 years

In a recent ruling (Judgment of 22.09.2022 – C-518/20 C-727/20) The European Court of Justice (ECJ) has determined that holiday entitlements do not have a three-year limitation period. This means that old holiday entitlements that could not be taken for health reasons, for example, can still be claimed even after several years and must be paid out to the employee.

In this specific case, an employee who was already receiving a pension due to a severe disability filed a lawsuit against Fraport. During his employment, he had been unable to take 34 days of annual leave due to his health condition.

No expiration of holiday entitlements: still valid 3 years later

Fraport argued that the employee’s holiday entitlement expired after the expiry of the § 7 III Federal Vacation Act (BurlG) The Federal Labor Court (BAG), however, questioned whether this regulation complies with European directives.

The ECJ ruled that holiday entitlements must be settled once they have arisen, regardless of the three-year limitation period common in Germany.

If you were unable to work in the past due to health reasons or pregnancy and therefore could not take your holiday, you are entitled to compensation for these holiday entitlements. We recommend: Have your claims reviewed by our team of lawyers, Sinan Böcek and Burcu Gülcan, who specialize in employment law.

The labor law expert at R&U Sinan Böcek answers your questions:

Am I entitled to vacation, wif I was sick all year?

The clear answer is: YES! According to the case law of the Federal Labor Court (BAG), the right to vacation does not depend on the employee's state of health. This also applies if the employee is ill all year round. In this case, however, special aspects must be taken into account, which should be examined by a lawyer beforehand.

Can remaining vacation days be cancelled?

No! The remaining vacation days may not be cancelled unilaterally by the employer. The employer must give the employee the opportunity to use the remaining vacation days in the same year, but no later than March 31 of the following year. If the employer does not grant this remaining vacation days, this vacation entitlement does not expire even after three years.

When does unused vacation time expire?

According to a recent ruling by the European Court of Justice (ECJ), the remaining vacation days do not expire! Therefore, it is possible to compensate for vacation days even if employment relationships have already ended, i.e. to get them paid out.

Can I get paid out for vacation days I didn't take?

It depends on whether the employment relationship has not been terminated. If the employment relationship continues, the employer must grant the holiday entitlement through paid leave. If the holiday entitlement no longer exists, the employee is entitled to a replacement holiday. The replacement holiday entitlement is intended to ensure that the holiday entitlement that no longer exists continues. This should take place under the conditions of the Federal Holiday Act (BUrlG) - i.e. paid leave instead of compensation in cash. If the employment relationship has ended, however, the only option is to compensate for these entitlements in cash.

Can remaining vacation last beyond 31.03. transferred beyond?

In Germany, there is no legal regulation that states that remaining vacation must be taken by March 31 of the following year. According to § 7 Federal Vacation Act (BUrlG) an employee is entitled to paid holiday and it is the employer's responsibility to ensure that the employee has the opportunity to take the holiday. It is therefore possible that remaining holiday can be carried over beyond 31 March, as long as it is agreed between the employer and the employee.

Does the employer have to inform about remaining vacation days and if so, when?

The employer has a duty to inform and cooperate in this regard. If the employer fails to comply with this duty, the remaining holiday entitlement can be carried over into the following year. The employer should therefore regularly inform employees that they still have holiday entitlement left and that they should take it before it expires. A good time to do this could be shortly before the end of the calendar year, for example.

Can the employer refuse to grant the remaining vacation days after termination?

After termination and termination of the employment relationship, it is possible to compensate for the vacation in cash. Those affected should therefore contact us and have us check their entitlement. It is therefore not permissible for an employer to refuse the remaining vacation just because termination has been announced. However, it is permissible for the employer to pay the remaining vacation in the form of time off in lieu or in cash when the notice period has expired, unless something else is agreed in your employment contract or collective agreement.

Do you have any questions about employment law? Then please contact our team of expert lawyers. We will provide you with legal advice that is sound and reliable – by phone or email.

Der Beitrag Bezahlter Jahresurlaub – kein Verfall von Urlaubsansprüchen erschien zuerst auf R&U.

Schutz von Arbeitnehmenden am Arbeitsplatz

Marco Rogert — Wed, 27 Jul 2022 08:18:47 +0000

In working practice, despite long-term employment and high levels of commitment on the part of the employee, different reasons for disagreements with superiors and colleagues. This can be due, on the one hand, to the fast-paced nature of the business landscape, as a change in company ownership due to business sales, operational changes, or personnel changes in management often also results in a change in the immediate superior. This can quickly lead to serious changes in the corporate culture, which in turn can have a significant impact on cooperation within the company and on working conditions.

On the other hand, many companies are currently facing cost-cutting measures. The main reason for this – in light of the looming recession in industrialized and emerging markets – is a decline in German exports, which will be reflected in Germany's overall economic output. In addition, the increasing automation of work processes is leading to a growing redundancy of work performed by employees.

Against this background, many employees are confronted with unjustified disputes or warnings that lead to negative entries in their personnel files without the employee being given the opportunity to explain their point of view.

Disputes with the employer – what should be done?

At a Termination There are often many unanswered questions for employees due to employers.

I'm still in my probationary period and was terminated by my employer without cause. Can I successfully appeal this termination, or is there no point?

Contrary to popular belief – even among lawyers, who only deal with labor law marginally – employees are not subject to the mere arbitrary decisions of their superiors. Special protection against dismissal for pregnant women or severely disabled people also begins upon signing the employment contract. However, this requires that the human resources department or employer is aware of the severe disability or pregnancy. If a works council or staff council exists, these bodies must be consulted before a dismissal is announced. When dismissing a severely disabled person, prior approval from the Integration Office must be obtained. Legal representation is recommended in such proceedings, because once the Integration Office's approval has been granted, it can only be challenged in court.

I fear serious consequences if I sue my employer. What can I do in this case?

You don't always have to sue your employer! There are several labor law tools available that can achieve significant success in out-of-court disputes between superiors and employees. The situation is different for all types of dismissals, such as dismissals with a change of terms or dismissals based on suspicion on the part of the employer. In cases of this kind, legal action is necessary for reasons of effective legal protection.

Rogert & Ulbrich recommends that employees take immediate action

Do you feel unfairly treated? You don't have to let it go! We offer you a professional and free initial consultation. You send us all necessary documents (Employment contract, possible amendments, termination, payroll) and we will prepare for you within 24 hours a draft lawsuit and an out-of-court dismissal letter to your employer.

If you do not have employment law legal protection insurance There is the possibility of a mandate with self-payment. In labor law, the Cost issue The principle: Each party bears its own costs in first instance proceedings, even if it wins.

Also the possibility legal aid Applying for legal aid is provided for in labor law. If you are unsure whether you are eligible to apply for legal aid, we would be happy to advise you on this matter.

Checkliste für Arbeitnehmende bei einer Kündigung

Marco Rogert — Wed, 11 May 2022 09:20:43 +0000

Terminating an employment relationship is initially a difficult blow. We typically spend more time at work than at home, so quitting is never easy. More and more employees are affected by layoffs these days, but many are unaware of their rights after being fired.

Don't be discouraged right now! Many dismissed employees have general legal protection against dismissal. This is Dismissal Protection Act (KSchG) regulated and applies to employees whose employment relationship has lasted longer than six months and who are not employed in small businessesTermination of the employment relationship is only possible under certain conditions. If these conditions are not met, the Termination may be ineffective. Laws are complex and not immediately understandable for everyone, so you should always inform us about your termination have it checked!

What you need to take care of after your termination

Keep calm! Now is not the time for rash action.
You should register within 3 days at the employment agency register as unemployed. Otherwise, they face a waiting period.
Get professional support and let us advise you! Our initial consultation is free and non-binding. We will check whether your cancellation is valid.
We advise against signing a termination agreement. This would result in a barring period at the employment office. Therefore, you should never sign a termination agreement without professional advice.
It should also be noted that the Deadline for a wrongful dismissal claim 3 weeks from receipt of notice of termination You should therefore immediately contact us after you have received notice of termination so that we can discuss all the details with you and on time can file a wrongful termination suit on your behalf.
It's best to submit applications before the notice period expires. The employer must release the terminated employee for interviews.

We at Rogert & Ulbrich know what to consider!

Are you unsure whether your employer has complied with the statutory notice periods or whether your termination without notice contains an important reason? We offer you a professional and free initial consultation. You send us all necessary documents (Employment contract, possible amendments, termination, payroll) and we will prepare for you within 24 hours a draft lawsuit and an out-of-court dismissal letter to your employer.

Kündigungsschutzklage: Anspruch auf Prozesskostenhilfe?

Marco Rogert — Thu, 24 Feb 2022 08:53:03 +0000

At a dismissal protection process In the first instance, each party incurs costs because each party bears their own legal costs. It does not matter who won and who lost. If you do not have any financial means available for dismissal protection proceedings, you can apply for legal aid.

Through legal aid, the state covers the costs incurred by the court and the client’s own lawyer. Only your own costs will be coveredThis is intended to give people with limited financial means the chance to have a procedure. The costs are then billed directly to the state treasury. For the person affected, the costs are either waived in full or are (proportionately) repaid in installments.

Even if you apply for legal aid, you still have the right to choose your own lawyer. The court will then assign the desired lawyer to you upon request. We will of course submit this application as part of the submission of the unfair dismissal claim for you.

Requirements for Granting Legal Aid

Legal aid is usually granted in accordance with Section 114 of the Code of Civil Procedure. It is important to note that due to one's personal and financial circumstances, one may not be able to raise the necessary financial means for the process at all, only partially, or only in installments (financial needHowever, the lawsuit must not be completely hopeless and there must be no legal expenses insurance that would cover the costs.

Rogert & Ulbrich recommendation for legal aid

Are you unsure whether you can apply for legal aid? Then let us advise you free of charge and without obligation. Take advantage of our free initial telephone consultation now and ask our specialized lawyers your questions.

Kündigungsfristen – Was ist zu beachten?

Marco Rogert — Mon, 21 Feb 2022 10:50:57 +0000

The notice periods in labor law are in the §§ 622 ff. BGB This stipulates that employees are entitled to a uniform statutory minimum notice period of four weeks by the 15th or at the end of a calendar month. An exception is the probationary period: During this period, both employees and employers can terminate the employment relationship at any time with a notice period of 2 weeks (Section 622 Paragraph 3 of the German Civil Code).

But what are the notice periods for the employer? Depending on the length of service, the notice period for the employer can be extended (§ 622 para. 2 BGB)If, for example, the employee has been working for the company for two years, his notice period is one month to the end of the calendar month. If he has been working there for five years, his notice period is two months to the end of the month.

at 8 years, the notice period is 3 months to the end of the month
at 10 years, the notice period is 4 months to the end of the month
at 12 years, the notice period is 5 months to the end of the month
at 15 years, the notice period is 6 months to the end of the month
at 20 years, the notice period is 7 months to the end of the month

This legal regulation is intended to protect employees, especially those who have been working for the same company for a long time.

A notice period may also be agreed in the employment contract. It should be noted that a shorter notice period is only possible under certain circumstances (§ 622 para. 5 BGB). Employees must have been hired as temporary workers, and the working period must not exceed 3 months. It is also important that no longer notice period may be agreed for the termination of the employment relationship by the employee than for the termination by the employer (Section 622 Paragraph 6 of the German Civil Code). If, for example, a notice period of 3 months is agreed in the employment contract, this period must apply to both parties.

Deviation: When is termination without notice possible?

A deviation from § 622 BGB is § 626 BGB. This is where termination without notice for good cause is regulated. The notice periods of § 622 BGB do not apply in the context of termination without notice. However, a "important reason". It is questionable meanwhile, which is an important reason for an extraordinary (immediate) termination. It must be unreasonable for the person terminating the contract to comply with the regular notice periods. This requires a serious violation which cannot be justified. As a rule, the employer must nonetheless check beforehand whether a milder measure, such as a warning, comes into consideration.

The following reasons would justify termination without notice:

data protection violation
Sexual harassment/coercion
working time fraud
theft
vacation without permission
Unexcused absence
Forgery of vaccination/recovery certificate
threat of violence
insult
bullying

We at Rogert & Ulbrich know what to consider!

Are you unsure whether your employer has observed the statutory notice periods or whether your termination without notice contains an important reason? Then let us advise you free of charge and without obligationWe will prepare for you within 24 hours a draft lawsuit and an out-of-court dismissal letter to your employer. Take advantage of our free initial telephone consultation now and ask our specialized lawyers your questions.

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Der Beitrag Kündigungsfristen – Was ist zu beachten? erschien zuerst auf R&U.

Kündigungsschutzklage – Wehren Sie sich gegen Ihre Kündigung!

Marco Rogert — Tue, 15 Feb 2022 09:04:03 +0000

Have you just been laid off? Then you're shocked at first, and you probably feel your livelihood is at risk. But don't let this discourage you! Many dismissed employees are protected by general statutory protection against dismissal. This is regulated by the Dismissal Protection Act (KSchG) regulated and applies to employees whose employment relationship has lasted longer than six months and who are not employed in small businesses. In addition, there is special protection against dismissal for groups of employees such as pregnant women, severely disabled persons and trainees. Termination of the employment relationship is only possible under certain conditions. If these conditions are not met, the Termination may be ineffective. Laws are complex and not immediately understandable for everyone, so you should always inform us about your termination have it checked!

We at Rogert & Ulbrich know what to consider!

As an employee, you have the opportunity to take legal action against any dismissal. Important It is important to note that a dismissal protection suit according to § 4 KSchG within 3 weeks from service of notice of termination must be filed with the relevant labor court. A wrongful termination lawsuit always seeks to maintain the employment relationship because the termination was invalid. However, the lawsuit is generally not intended to secure reinstatement or continued employment, but rather to enforce severance pay. To obtain the highest possible severance pay, you should seek advice from us. As a nationwide consumer protection law firm that has already successfully helped thousands of defrauded consumers obtain their rights in the diesel emissions scandal, we will fight for your rights in this matter as well.

What other advantages does an unfair dismissal claim bring?

Filing a wrongful termination lawsuit offers many advantages. Experience shows that employers' willingness to negotiate increases when employees file a lawsuit for reinstatement or continued employment ("unfair termination lawsuit").

One severance pay Obtaining compensation is now a matter of negotiation: By filing a wrongful termination lawsuit, you demonstrate that you are unwilling to accept your employer's dismissal. Employers are then more willing to negotiate during the first court hearing, the so-called "conciliation hearing." The conciliation hearing is designed, among other things, to resolve the legal dispute amicably and, if possible, to reach a settlement, which often takes the form of a severance payment.

More Advantages The benefits of a filed unfair dismissal claim could include vacation pay, overtime compensation, a good reference, or the prevention of a waiting period at the employment office, as well as time off work. Right at the beginning of the process, we will apply for a good interim reference for you so that you can apply for a job smoothly. Upon conclusion of the legal proceedings, you will also be entitled to a favorable, qualified final reference.

We at Rogert & Ulbrich know exactly what to look out for and fight for your rights!

Why you should act immediately!

Many dismissals fail to meet the required criteria. Furthermore, labor court jurisprudence is employee-friendly. Therefore, depending on the reason for dismissal, your chances of success are very good.

We create for you within 24 hours a draft lawsuit and an out-of-court dismissal letter to your employer. Take advantage of our free initial telephone consultation now and ask our specialized lawyers your questions.

FAQs – Frequently Asked Questions

What steps should affected individuals take immediately after receiving a termination notice?

After receiving a notice of termination, the employee should file a lawsuit within three weeks, otherwise important rights in the case will be lost.

What deadlines apply to unfair dismissal claims?

The notice period and the deadline for filing a lawsuit are crucial. If the employee misses these deadlines, they often lose their claim.

Is it possible to remain employed during the trial?

Yes, often there can be a right to continued employment as long as the employment relationship has not yet been legally terminated.

When is reinstatement an option?

Reinstatement or a right to reinstatement may become relevant if the employer creates new positions or the reason for dismissal ceases to exist.

Why is professional legal support advisable?

Our lawyers will review the content of the dismissal, any errors made by the employer, and all relevant information in order to develop an effective strategy.

What significance does the content of the termination notice have for the proceedings?

The content of the letter significantly influences whether the employment relationship has been effectively terminated or whether there are formal errors.

What are some typical mistakes employers make when making dismissals?

Many companies provide insufficient justification for termination, fail to comply with the written form requirement, or incorrectly determine the notice period – an advantage for the employee.

What documents and information should be gathered before filing a lawsuit?

All information relating to the case is important: contract, warnings, correspondence, performance reviews and data on the duration of the employment relationship.

Can an employee demand reinstatement if the company's situation changes?

Yes, there is a right to reinstatement if the circumstances change significantly after the dismissal – for example, due to new positions or errors by the employer.

How should you react if your digital access is revoked immediately after termination of your contract?

Technically unlocking internal access is not absolutely necessary. Even without system access, you as an employee can file a claim for unfair dismissal and fully exercise your employment law rights.

Der Beitrag Kündigungsschutzklage – Wehren Sie sich gegen Ihre Kündigung! erschien zuerst auf R&U.