Get terminated by the employer, avoid barriers.
August 15, 2009 | 40,00 EUR | answered by Andreas Scholz
Background:
I want to receive unemployment benefits/entrepreneurial support without a waiting period. To do so, I am attempting to be terminated by my employer (due to business reasons and in compliance with the notice period), possibly in combination with a termination agreement. The company has a works council, so there will be a hearing regarding the termination. Business-related terminations would currently be economically justifiable. There is a works agreement stating that no business-related terminations are to be issued at the moment.
Here are my questions:
1. What risks does this pose for the employer (e.g. a lawsuit from me for wrongful termination)?
2. How can these risks be minimized/eliminated for the employer (e.g. through a termination agreement)?
3. What criminal consequences could a termination initiated by the employee have for both parties? To what extent is this even permissible?
4. To what extent is the works council obligated to represent my interests in this case? (I have read that the works council is obligated to represent the interests of the workforce and not individual interests)
Thank you for your support! If the situation or questions are not sufficiently formulated, please let me know so that I can provide more information if needed.
Dear inquirer,
I am happy to provide you with case law references regarding your issue. Please let me know by using the appropriate function.
Best regards,
Andreas Scholz, Attorney
Dear inquirer,
If you terminate your employment or enter into a termination agreement, you will fall into the waiting period.
Case law makes an exception for termination agreements only in cases where a redundancy dismissal was imminent for the employee. However, this is not the case due to the existing works council agreement. Therefore, in the event of self-termination or termination agreement, you can expect a waiting period.
If your employer terminates your employment despite the works council agreement and you do not file a wrongful termination lawsuit, case law states that you can demand a wrongful termination lawsuit if the termination was obviously unjustified. Given the works council agreement you mentioned, this is likely to apply here as well, leading to a waiting period.
The works council cannot file a lawsuit on your behalf in the event of termination. If you do not seek or accept the assistance of the works council, they will not act.
As a criminal consequence, social benefit fraud cannot be completely ruled out, although it may be difficult to prove for the social security agency.
I hope this information is helpful. If you have any questions, feel free to ask.
Best regards,
Andreas Scholz, Attorney
