Cancellation by mail, SMS or fax is not "enough".
Cancellation must be in writing. Your notice of termination is therefore only effective if you receive a letter of termination with an original signature and not just a copy. A verbal notice of termination is therefore just as invalid as one sent by WhatsApp, e-mail, SMS or fax.
The resignation letter must clearly indicate that your employer wants to terminate you, but they do not have to use the word resignation. This so-called. Specificity requirement is sometimes important for termination without notice. Then it must be clear and unambiguous for the employee from the termination letter that the employment relationship is to be terminated immediately or for good cause with an expiration period. In the case of a notice of termination in compliance with the notice period, it is sufficient if it is clear from the letter of termination that the employment relationship is to end on the next possible date. Common is e.g. following formulation:
"We hereby terminate the existing employment relationship with you as of the next possible date, which in our opinion is the .. ."
A termination notice does not have to include a reason.
Reasons do not usually have to be given
Contrary to a widespread misconception, your employer does not have to provide reasons for termination in the termination letter itself.
In the event of termination without notice, however, you can demand that your employer inform you of the reason. If he does not, you can later claim damages from him under certain conditions. However, this right will not help you much as a rule.
A special feature exists in training relationships. For them, the Vocational Training Act makes it mandatory that notices of termination after the probationary period must contain a statement of reasons. If it is missing in the letter of termination, the termination is already therefore invalid.
The same applies to termination during maternity leave, i.e., during pregnancy and up to four months after delivery. Again, notices of termination that do not contain a statement of reasons are invalid. In addition, the employer must also observe the special protection against dismissal.
Who may sign the notice of termination?
Check whether the right person has signed.
A person may terminate an employment contract if he or she may also hire the employee
Give notice, d. h. The termination may be signed by the company owner, the managing director, an authorized signatory, the personnel manager and, for example, the head of the company. the person who signed your employment contract. In his case, you know – according to the labor courts – already because of his signature on your employment contract that he was entitled to hire you and consequently also to dismiss you. Also with the personnel manager results already from its function that it may quit.
Others must include a power of attorney
If someone else signed your notice, they must include their authority (power of attorney) to give notice to you in the notice letter or. together with it in writing. If the letter of termination is not accompanied by an original signed power of attorney made out to the person giving notice, this may help you if your employer has a deadline to meet with the termination notice.
Reject the notice of termination if the wrong person has signed and has not attached a power of attorney to his letter.
Missing power of attorney
You can gain time by rejecting the termination due to the lack of power of attorney. This must be done without delay. It is best to do this within one week. With the timely rejection of the notice, it is automatically ineffective. If you are not sure about this, you should immediately make an appointment with a lawyer for labor law, so that he can examine the termination if necessary. can reject it before it is one week old.
The notice of termination must then – if necessary. you can repeat the process by submitting a proper written power of attorney. This can be particularly important in the case of terminations without notice, as they must be issued no later than two weeks after the employer learns of the actual or alleged misconduct of its employee. In most cases, these two weeks are long gone before a new (proper) notice can be given.
Sometimes the delay helps
A delay caused by a rejection of a notice with reference to the missing power of attorney can be interesting for you even if the notice period is longer. For example, if the employer, after rejecting his notice, can only terminate at a later termination date.
Remember that you have to file a complaint against any – even an invalid – termination within three weeks. If you do not do this, your termination will automatically become effective. Therefore, if a termination is repeated due to a lack of original authorization, you must file a timely complaint against both terminations.
Receipt of the notice of termination (receipt)
A termination becomes effective only at the moment you have received it, d. h. when you receive it. This is immediately the case with a personal handover. Whether you read the letter is not important. The decisive factor is when you could have taken note of its contents. Exactly at this moment you have received the notice of termination.
Make a note of when you received your notice of termination.
Significance of receipt
From the date of receipt of the notice of termination, not only the notice period but also the three-week period for bringing an action for protection against unfair dismissal runs. If you do not file a complaint in time, the termination is already effective for this reason. It is therefore best to note immediately on the envelope when you received the letter.
When calculating the deadlines, the day on which you received the notice of termination is not counted. So if you send your notice bspw. received on a Tuesday, the deadline for filing an action for protection against dismissal is three weeks later on a Tuesday at 24.00 a.m.
dropped into the mailbox
– By the letter carrier
It is more difficult to determine the time of receipt if you have received the notice by messenger or mail and it is in your mailbox. If the letter carrier drops off the letter, the mailbox is usually emptied on the same day. Therefore, you can usually read the letter on the same day, therefore it is delivered to you on the day it is put in your mailbox.
– By a messenger
In the case of a messenger, the following distinction is made. If the letter is posted before the letter carrier arrives, it is delivered on the same day. If, however, he does not post the letter until later, after the letter carrier has already left and the letterbox could therefore normally already have been emptied, the letter is not deemed to have been received until the next day.
Make sure that your mailbox is emptied regularly, even while you are on vacation.
– You are not at home?
It is irrelevant for the receipt that you are not at home, i.e. if you are not at home for a longer period of time. you are out of town or in hospital. It is also irrelevant whether your employer knows or does not know that you are not at home. Because an action for protection against dismissal must be brought within three weeks of receipt of the notice of termination, you should ensure that your mailbox is emptied regularly and the mail is checked, especially if you will be absent for a longer period of time. At the very least, you should do this if there have already been disagreements, differences or problems at your workplace – as is often the case prior to a dismissal.
It is more complicated if the notice of termination is sent by registered mail. A distinction must be made here. A registered letter is delivered like a normal letter as soon as the letter carrier drops it in your mailbox.
– Delivery of other registered mail
In the case of hand-delivered registered mail and registered mail with advice of receipt, the letter carrier does not drop the letter in the mailbox, he must hand over the document personally. Here, the letter is delivered when your letter carrier hands it to you personally or to someone who is considered authorized to receive it. This can be e.g. be family members and cohabitants, as well as landlords and domestic servants – but not neighbors.
A registered letter can also be "delivered" to you if you do not pick it up from the post office.
If the letter carrier does not reach anyone, he will leave a notification bill in your mailbox asking you to pick up the letter at the post office. Since you cannot find out what the contents of the letter are, you will only receive your notice of termination when you pick it up later. The notice only becomes effective when you pick up the letter and it is handed over to you.
If you deliberately do not pick it up, even though you expect to receive notice of termination, you will be treated as if you had picked it up; this is referred to as denial of access. It is different if the letter carrier fails to put the notification slip in your mailbox. Then you do not know about the letter and cannot pick it up. The letter is therefore neither delivered to you nor do you have to be treated as if you had received it. In the case of doubt, your employer must prove that the letter carrier put the notification slip in your mailbox.
– Disadvantages of registered mail
To avoid such problems, employers often have notices of termination delivered by messenger or send them by registered mail. The latter has the disadvantage for the employer that he must prove that the letter was posted if the employee claims not to have received the letter. The employer must then name the letter carrier as a witness and can only hope that he still remembers the event. In most cases, however, it is sufficient for the courts if the letter carrier confirms that he only notes the posting if he has also posted the letter in the letterbox.
There are statutory, contractual and collectively agreed notice periods.
Only in exceptional cases, namely in the event of termination without notice (extraordinary termination), does the employment relationship end immediately upon receipt of the notice of termination and without a notice period. Otherwise, either the statutory notice periods, those from your employment contract or those from a collective agreement applicable to you apply.
Statutory notice periods
For the duration of a probationary period of up to six months, the statutory notice period is two weeks. According to labor courts, this applies even if the probationary period is unreasonably long.
The statutory notice periods are automatically extended for employers.
If no probationary period has been agreed or if it is already over, the statutory notice period of four weeks to the 15th day of employment applies. or at the end of a calendar month. It extends with increasing length of employment (alone) for the employer. After the expiration of two years, he or she may only terminate the employment relationship with a notice period of one month to the end of the month, whereby the length of the notice period depends on the length of employment:
|Over 2 years||1 month|
|Over 5 years||2 months|
|Over 8 years||3 months|
|Over 10 years||4 months|
|Over 12 years||5 months|
|Over 15 years||6 months|
|Over 20 years||7 months|
Many employment contracts stipulate that the statutory notice periods are extended for employees in the same way as for the employer.
According to the law, these extensions only apply when the employer terminates the employment relationship. For you as an employee, the law does not provide for an extension of the notice period. Therefore, even if your employment relationship has existed for several years, you can terminate your employment relationship with four weeks’ notice to the 15th day after the end of the employment relationship. or terminate at the end of the month. However, your employment contract or a collective bargaining agreement applicable to your employment may stipulate otherwise.
Periods of notice under collective bargaining agreements
Many collective agreements stipulate their own notice periods. The parties to collective bargaining agreements often consider it unreasonable that the statutory notice periods are extended only for employers. In addition, the statutory notice periods do not fit in some industries. Collective agreements may stipulate shorter notice periods than the statutory ones and set different end dates.
For this reason, you should always check whether a collective agreement applies to your employment relationship and whether it specifies special notice periods, both in the case of a termination by the employer and in the case of a termination intended by yourself.
Notice periods in employment contracts
In principle, notice periods deviating from the statutory periods can also be agreed in employment contracts. You should therefore first look at your employment contract after giving notice.
The employment contract may only contain longer periods.
Shorter notice periods than the statutory notice periods may not normally be agreed, however. Exceptions only apply to employees in companies with generally no more than 20 employees or to employees who are only temporarily employed as temporary help. If the temporary employment lasts longer than three months, the statutory notice period of four weeks applies from that point onwards.
Very often, employment contracts contain provisions according to which the extended statutory periods of notice also apply to notices of termination given by the employee. Pay attention to this. The regulations are sometimes overlooked because they are concise.
Your notice period may not be longer than your employer’s notice period.
Many employment contracts extend the statutory notice periods. This is possible without further ado. However, the notice period for the employee may not be longer than that of the employer.
Sometimes the statutory notice periods and the notice periods in an applicable collective agreement and/or in the employment contract do not coincide. If so, the period of notice that is more favorable to the employee always applies, i.e. the longest one.
Insolvency of the employer
In the event of the employer’s insolvency, the law shortens any longer notice periods to three months. The insolvency administrator can therefore always terminate with a notice period of no more than three months. This applies both to longer statutory or collectively agreed notice periods and to longer periods agreed in the employment contract.
In the case of insolvency, this three-month notice period applies even if the employee concerned has been given an ordinary notice of termination – e.g., a notice of dismissal. is excluded in a collective bargaining agreement.
Termination of fixed-term employment contracts
Check whether your fixed-term contract permits termination at all.
A fixed-term employment contract generally ends on the agreed date or when the agreed purpose is achieved. It can normally only be terminated if this is agreed in the employment contract or stipulated in a collective agreement applicable to the employment relationship. In the absence of such a provision, terminations – with the exception of terminations without notice due to serious breaches of duty – are excluded. If you receive a notice of termination and have a fixed-term contract, you should therefore first check whether termination is permissible at all.
However, here too, a dismissal becomes effective if the employee does not appeal against it within three weeks.
Termination without notice (for cause) is possible in a fixed-term employment contract just as in an unlimited employment contract. However, there must be an important reason for this. such as in the case of theft by the employee or bspw. In the case of serious insults or other serious breaches of duty.
Withdrawal of a notice of termination
You cannot simply withdraw a notice of termination.
It must be "agreed
After receipt of the notice of termination, the employment relationship ends immediately in the case of termination without notice, otherwise with the expiry of the notice period. Because the employment relationship ends "on its own", your employer cannot simply withdraw its notice of termination. After a notice of termination, the employee can at most agree with you that the termination shall have no effect. Your employer can therefore only withdraw his notice with your agreement.
This is quite simple
There is no specific form for this. Thus it is sufficient bspw. if, with the consent of your employer, you continue to work after termination beyond the end of the notice period. However, you should insist that the withdrawal of notice and your consent are recorded in writing.
Otherwise, disagreement may arise later as to what was discussed and agreed upon. This becomes problematic, for example, if the employee, relying on a verbal agreement, does not bring an action for protection against dismissal within the statutory period of three weeks, and if the employer then claims that he has not withdrawn the notice of termination at all.
Nothing else applies in the lawsuit
The employer cannot unilaterally revoke the notice of termination even in the course of proceedings for protection against unfair dismissal. However, the employer can acknowledge on your claim and thus agree to his immediate conviction by the court. The court will then immediately issue a sog. acknowledgement judgment that the dismissal is invalid. Then you have won the dismissal protection case and your employment relationship continues on the basis of this judgment. You can then continue to work, but of course you will not receive any severance pay.
However, some labor courts see the action against the dismissal as an offer to the employer to accept its possible (future) withdrawal of the dismissal.
If your employer "threatens" to withdraw his resignation, he is usually bluffing.
In the process employers sometimes bluff
If the severance pay they are discussing is too high, some employers sometimes threaten to withdraw their dismissal in the hearing before the labor court, i.e. with such an acknowledgement. Mostly this is not serious. In such a situation it depends above all on your negotiating skill or that of your lawyer for industrial law whether your employer accepts nevertheless still the higher compensation. However, an experienced employment law attorney usually recognizes and senses how serious your employer really is.
If you have a new job, you’re free to make your own decision.
When you have a new workstation
If an employee already has a new job, he is free to decide whether or not to return to his old job, even after winning a lawsuit and even after such a judgment of acknowledgment. If not, he can refuse to his old employer within one week in writing the continuation of the employment relationship (§ 12 KSchG ). Then the employment ends and he is free.
But then he gets no severance pay. You can’t do more than win a dismissal protection case. This can happen if you have gone over the top in negotiations for severance pay.