If the employment contract expires due to a fixed term, an action for a reduction of the term can be filed. Read when this really makes sense – and when it doesn't.
- Fixed-term employment contracts in Germany
- What is a dismissal action?
- How to file an action for a limited term?
- Deadline for filing an action for the removal of a term limit
- Why a fixed term may be invalid?
- When is it advisable to file an action for a fixed term?
- Sequence of proceedings in court for the removal of a fixed term
- Practical tip
1. Temporary employment contracts in Germany
There are more and more fixed-term employment contracts in Germany. Since such an agreement ends without notice, this creates considerable legal uncertainty for the employee. Concrete figures on the number of fixed-term employment contracts can be found in the publication "Population and Employment" on the website of the German Federal Statistical Office.
The admissibility of a fixed-term contract is based (in particular) on the provisions of the Act on Part-Time Work and Fixed-term Employment Contracts (Part-Time Employment Act – TzBfG). Ultimately, any limitation of the employment contract represents a – lawful – circumvention of the protection against dismissal (in accordance with the German Protection Against Dismissal Act – KSchG). For an employment contract would have to be terminated in accordance with the requirements of the KSchG, whereby the termination must be based on operational, behavioral or personal reasons.
2. What is a dismissal action?
The disadvantages of a fixed term mainly affect the employee. This is especially true in cases where employment contracts are concluded over and over again for a fairly short period of time (so-called. Chain fixed-term contracts). Against this background, the provision of § 17 TzBfG offers the employee the opportunity to have the legality of a fixed-term employment contract determined by a court or. To take action against an invalid fixed-term contract. One speaks of a sog. An action for the removal of a fixed term, or action to control a fixed term. This is ultimately a modified form of the action for protection against dismissal, which can be filed by the employee against the termination of his or her employment relationship.
If the action to terminate the employment contract is successful, the employment relationship is continued for an indefinite period of time.
3. How to file an action for relief from time limits?
Anyone who believes that their fixed-term contract is invalid can have this reviewed in court. Like the action for protection against dismissal, the action to terminate the employment relationship must be filed in writing with the competent labor court. This is usually the labor court at the place of work. The action for termination of employment may also be brought by the employee himself, d.h. can be filed without a lawyer. A special designation is not required. It is sufficient that it is evident that the fixed term of the employment contract is to be reviewed. In case of uncertainty, the employee can turn to the legal application office of the competent labor court.
4. Deadline for filing a claim for a reduction in the term of office
It is important to note the deadline for filing a claim for a limited term, as this must be filed no later than three weeks after termination of the employment relationship. The "end of the employment relationship" is deemed to be the date specified in the employment contract or in the notice of termination. a separate agreement on the time limit fixed end of employment.
If the employment relationship is initially continued despite an agreed end of employment and the employer later invokes the termination of the employment relationship, the three-week period runs from the employer's written declaration that the employment relationship has ended. This means that in this case the time limit is triggered only if the employer invokes it in writing. The action for termination of the employment relationship can also be filed while the employment relationship is still in existence.
Example: The fixed-term employment contract of employee A started to run on 31.03.2015 from. However, A continued to appear at work every day in the subsequent period. On 30.04. Employer G invokes the termination of the employment contract in writing.
The three-week period for the action for the removal of the term begins on 30.04. and ends on 21.05.2015.
If the deadline is missed, it can be argued that this happened without the employee's fault. However, the requirements here are very high.
5. Why can a time limit be ineffective?
As discussed by us in the article on the extension of fixed-term employment contracts, a fixed-term can be invalid for various reasons. First of all, an invalidity due to the violation of the written form requirement can be considered. The agreement on the fixed term (so-called. "fixed-term agreement") between employer and employee must be in writing and signed, a simple text form – such as by e-mail – is not sufficient. In order to comply with the written form requirement, it is sufficient if the conclusion of a fixed-term contract is signed by one side of the contract (z.B. employer) unilaterally signed submitted and signed by the contracting party (employee). (BAG v. 26.07.2006 – Az. 7 AZR 514/05).
The written agreement of the time limit must always be concluded in the employment contract. A subsequent written agreement because the original employment contract z.B. only verbal agreement is possible only if other changes are made than just fixing the time limit. Otherwise, the employment relationship is for an indefinite period. However, the reason for the fixed term (see below) is not subject to the written form requirement, but only the agreement of a fixed term per se.
Pursuant to Sec. 14 TzBfG, the Part-Time Employment Act differentiates between fixed-term employment with and without material grounds. A non-factual fixed term is possible a maximum of three times over a total maximum period of two years. However, there are different special rules to consider here, such as for older employees over 52 years of age.
In principle, a fixed-term contract with a material reason can be concluded as often as desired. However, ever new fixed terms must not be abusive of the law (BAG v. 18.07.2012 – Az. 7 AZR 443/09).
All in all, fixed-term employment law is very complex – it is advisable to go to the legal or. Specialist attorney for labor law. This applies in particular if the legality of several fixed-term contracts in succession is to be assessed.
6. When is it advisable to file an action for a limited term??
In principle, an action for the removal of a fixed term is always recommended if an agreed fixed term is considered to be invalid. However, you should always consider the consequences of filing an action for a limited term, especially how it will be perceived by the employer.
In this regard, the following frequent cases should be pointed out:
- An action for the termination of an employment relationship is often filed even though the employee does not wish to continue the employment relationship, but would like to obtain severance pay. In this constellation, an action for the removal of a fixed term makes sense, especially if the employer wants to reduce the number of jobs. Because then he will have to consider whether he should buy himself out of a contract that is now unlimited due to the invalidity of the fixed term by paying a severance payment.
- Whoever works in a company in which he has no (small business) resp. the employee does not yet have protection against dismissal (during the first six months of employment, often during the probationary period) under the Dismissal Protection Act, must expect that the employer will issue an ordinary notice of termination after the action for the removal of the term limit has been filed. In this case, the action for a reduction in the term of employment should therefore be brought, if possible, only after six months of employment, if this is possible within the time limit.
7. The course of the proceedings before the court for an extension of the term of employment
First of all, there is a conciliation hearing in which the employer and employee try to reach an amicable agreement. This should take place two weeks after the action for the removal of a fixed term has been filed – in practice, four to six weeks usually elapse. If the parties – depending on the situation – neither agree on an extension of the employment contract, nor on a continuation of the employment relationship (e.g., a termination of the employment contract).B. If the employee does not agree to a new employment contract or a new fixed term) or to a severance payment, a "proper" court hearing (chamber hearing) will take place. Of course, an agreement can still be reached in this case as well. Otherwise, the court will pronounce a judgment. Until the date of the hearing in chambers or the hearing in court. Several months may elapse before the judgment is pronounced.
- The action for the termination of employment can be filed in writing without a lawyer up to three weeks after the termination of the employment relationship at the competent labor court.
- An action for the removal of a fixed term is always recommended if the agreement of a fixed term is considered to be ineffective.
- The action to terminate the employment contract makes sense if the employee has "nothing to lose" because the contractual relationship has already been terminated or the employee has already been dismissed. if the employee is interested in a severance payment and not in the actual continuation of the employment relationship.
- Anyone who does not have protection against dismissal under the Dismissal Protection Act must expect that the employer will issue a (regular) notice of dismissal in response to the action for a notice of termination.
9. Practical tip
A judgment of the labor court may be appealed to the regional labor court. In this case, a lawyer is required, d.h. A lawyer must be called in at this point at the latest. Particularly with regard to negotiations with the employer in the run-up to the ruling and the often complicated legal evaluation of fixed-term agreements, it is therefore advisable to consult a lawyer from the very beginning. The lawyer can meet the employer at eye level during the negotiations and knows how to negotiate with the employer.