Action against dismissal

Action against dismissal

An effective means of defending yourself against dismissal.

You are holding your notice in your hands and still can’t believe it. Nothing indicated that the management wanted to part with you. Now you are faced with the decision as to whether it makes sense to file an action for protection against dismissal and, if so, how to proceed in this case and obtain your rights.

The action for protection against dismissal is an effective means by which you can defend yourself and object to the letter of dismissal. If you would like to achieve continued employment as a specialist or manager, a lawsuit pursuant to Section 4 of the German Unfair Dismissal Act (KSchG) makes sense in any case. However, even if you have received the unjustified and groundless notice of termination, you can still defend yourself by filing an action for unfair dismissal. For this purpose, it is not absolutely necessary that you sue for a return to your workplace.

The action for protection against dismissal: In these situations it is appropriate

You are doing a good job, are satisfied with your job and are facing an existential disaster when the notice of termination reaches you. You have not thought about a career change at all. You prefer the continued employment in your company and do not see any visible reason for the separation announced by the management. If you are not responsible for the reason for the dismissal, an action for protection against dismissal always makes sense and can bring you back to your original job. If you do not want to let the matter rest and resign yourself to your dismissal, you have the right to file a lawsuit and should seek legal assistance. There is a deadline for your complaint, if you miss it, the objection becomes difficult – although not impossible.

An action for protection against dismissal is recommended if any of the following apply to you and your current situation:

  • You were dismissed through no fault of your own and without apparent cause.
  • The termination contains points that are not true and demonstrably false.
  • You do not want to accept the letter of dismissal.
  • The notice of termination contains formal errors and/or does not observe the statutory notice period.
  • You never received a warning and were literally terminated "out of the blue".

In these and similar cases, you should object and file an action for protection against dismissal before ordinary courts of law. In larger companies with a works council, you have the option of consulting this council and discussing the further procedure with it. There are certainly cases in which the works council can ensure that the letter of dismissal is withdrawn and thus save you the legal process of an action for protection against dismissal.

It all depends on the right course of action

Read through the letter calmly and several times. If you find errors, you can defend yourself and have a good chance of success if you file the action for protection against dismissal. Consultation with a lawyer should not be omitted even if you are able to finance the costs of a lawsuit yourself and cannot settle them via your legal expenses insurance. Lawyers experienced in employment law and protection against dismissal know what to do in the event of unlawful termination and how to obtain your rights and reinstatement.

The primary purpose of an action for protection against dismissal is to establish the facts as to whether you were rightly or wrongly dismissed. It is not a guarantee that the employer will reinstate you. Nevertheless, you should not leave this option unused and make full use of your potential. Even if you have no interest in being reinstated, contesting unjustified terminations can have advantages and, for example, earn you a severance payment.

  • After receiving the termination letter, you have exactly three weeks to file an action for protection against dismissal.
  • A written complaint to the competent district court is necessary.
  • The lawsuit can be filed with or without a lawyer (although legal support is definitely useful).
  • If there is a works council, an objection is lodged with it within one week of receipt of the notice of termination.

Even if the deadlines are tight and do not allow much leeway: Give yourself a few days and think carefully about how you want to proceed with the dismissal. You should also consider the objective of the action for protection against dismissal. If you would like to receive a good reference or a severance payment from the employer, you should express the claim in the action for protection against dismissal. The same also applies if you want to return to your job and achieve this goal by filing a lawsuit with the competent district court.

The complaint must state the form in which you are lodging an objection and the points of the dismissal with which you disagree.

Which reasons and formulations can render a termination invalid??

Failure to observe notice periods in accordance with Section 622 of the German Civil Code will result in the invalidity of an ordinary letter of termination. In the case of extraordinary dismissals due to breaches of duty or an accusation on the part of the employer, you can ensure justice with an action for protection against dismissal and do not have to put up with unfair accusations and accusations. A majority of all extraordinary terminations are faulty and are dismissed for lack of evidence in court. If you have been dismissed by e-mail or verbally, you can also defend yourself and take legal action against the dismissal. You hold the letter in your hands and have never received a warning before? These notices are invalid and your objection will be upheld without any ifs and buts.

Only in exceptional cases an employer can terminate without warning. For example, if an employee steals, divulges company secrets or has otherwise acted in a manner detrimental to the business. In this case, the employer has the burden of proof and must be able to prove in court that such a serious offense really occurred.

You also do not have to put up with the notice of termination for operational reasons. An action for protection against dismissal can, under certain circumstances, ensure that your employer’s social selection was incorrect and that he must continue to employ you.

An action for protection against dismissal is usually useful

If you are "not aware of any guilt" and do not want to lose your job, you can sue and get justice according to the legislation in the protection against dismissal. This method can also be used if continued employment is not in your primary interest. For a new career, you will definitely need a good reference, which not every employer will give you of their own free will. Especially if you are dismissed, your request may become a difficult and lengthy matter. With a dismissal protection action, you accelerate your claim and can ultimately decide whether you want to continue to work at the company or start anew and also receive an adequate reference from your previous employer.

If you feel that you have been unfairly discriminated against, you can contest the letter by filing a complaint against termination with the local court.

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