Dismissal protection lawsuit or not?
July 10, 2013 | 39,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
I have been working for almost 13 years at the German branch of an international airline. Since September 11th (2001), things have been constantly declining in the industry. In 2001, the company had 22,000 employees worldwide, but now there are only 9,000. In Germany, there are still 20 full-time employees, and many of my colleagues have retired early in recent years after reaching the retirement age of 60 with corresponding agreements. The company was on the brink of bankruptcy in November of last year, but it was prevented at the last minute.
My colleague and I have now received a proper redundancy notice at the end of June, taking into account the 6-month notice period until December 31st, 2013, as our department is being closed. Over the past 4 years, more and more of our tasks have been transferred to an external call center, which now carries out all customer service functions worldwide for our company. This centralization is part of the cost-cutting measures to restructure the company. This also means that there are no more such positions (in service) available, so the remaining tasks are only in marketing and sales.
The employer did not offer a severance package as it is not legally required, but after discussions with the HR department, we agreed on the payment of the standard severance package of half a month's salary per year of employment (deadline until Friday).
My question: on Thursday, July 18th, the three-week deadline for filing a protection against dismissal lawsuit expires. Based on the above information, would you recommend filing a lawsuit to achieve a higher severance package? Since the job no longer exists and there is no similar or equivalent position available, I believe that a lawsuit for reinstatement would be unsuccessful. I already had a consultation with a lawyer last week, but did not receive a clear response.
One more piece of information: I am 57 years old, female (turning 58 this year), unmarried, no dependent obligations, no disabilities.
Thank you for your response!
Dear inquirer,
Thank you for your inquiry. I would like to answer it as follows:
If I understand correctly, you are primarily concerned about a possible severance payment.
Legally speaking, a wrongful termination lawsuit may not necessarily be the appropriate instrument for this. In practice, it often happens that severance payments are made to settle the wrongful termination lawsuit amicably and especially without a judgment, but this is usually only the case in situations where the wrongful termination lawsuit could have at least some chance of success.
The wrongful termination lawsuit can only have a chance of success if the termination is formally or substantively invalid. Since I have not seen the termination letter and do not know the full facts, I cannot say much about the formal correctness of the termination.
The question then remains whether the termination is substantively correct. From your description, it appears to be a regular termination due to business reasons. Due to the size of your company, I assume that the dismissal protection law applies. In this case, the employer must make a so-called social selection and establish a social plan before the termination.
Only the employee who is socially less deserving of protection than another employee can be terminated (this involves factors such as age, length of service, number of dependents, etc). The wrongful termination lawsuit would only have a chance of success if either no social selection has taken place or if another employee who has not been terminated in the same position is less socially in need of protection. Without knowing the entire context, I cannot conclusively assess whether this is the case in a remote initial consultation.
Assuming the termination was correct, the wrongful termination lawsuit would likely not be successful.
Unfortunately, there is no legal right to severance pay. Severance pay must be paid if it is expressly agreed upon (for example through an employment contract provision or collective agreement) or if it is found during a wrongful termination lawsuit in the case of an extraordinary termination that the termination was invalid, but it is unreasonable for the employee to continue with the employment contract (this does not appear to be the case based on your description).
In conclusion, you can generally only strengthen or improve your negotiating position for a higher severance payment if the employer did not make a social selection or if it was done incorrectly.
I hope I have answered your inquiry to your satisfaction.
Otherwise, I wish you all the best.
Kind regards from the North Sea,
Danjel-Philippe Newerla, Attorney
