Employment Law

Unjustified dismissals in Germany..

..are dealt with a bit differently than in New Zealand. Of course. Under the German Unfair Dismissal Protection Act (“Kuendigungsschutzgesetz”), statutory protection against unjustified dismissals kicks in after 6 months.  However, only employees are protected, board members and managers are excluded. There are only three valid reasons for dismissals under the Act:  competence, misconduct or redundancy. Competence includes dismissal for long-term sick leave, which the Act defines as sickness of more than 6 weeks pa (over a period of 3 years).  There are also statutory notice periods depending on the length of service. Special rules apply to employees with disabilities. And additional requirements in collective agreements might also have to be considered. 

Any challenge of a dismissal must be lodged within 3 weeks, which is a very short period (compared to NZ’ 90 days) and strictly applied. In the absence of exceptional circumstances, no German court will consider applications out of time. On the other hand,  Employment Courts are very much employee -friendly. Also, different to New Zealand where reinstatement is an optional and no longer primary remedy, a finding of unjustified dismissal will automatically result in the employee being reinstated. No surprises then that most disputes are settled on the basis of a generally accepted formula which provides for at least 1 month salary per year of service. 

This might sound quite rigid and unflexible compared to New Zealand’s open ‘good faith principle’ and the assessment of what a fair and reasonable employer could have done in the circumstances. But at least it provides for certainty for both sides, and that is not a bad thing as it keeps expectations in line and allows for far better risk assessments.

More details (last couple of pages):

http://www.weil.com/files/upload/Employer_Update_May_June_2012.pdf