Severance pay / Termination agreement
October 23, 2009 | 30,00 EUR | answered by Andreas Scholz
Subject: Termination agreement and severance payment
I worked from July 2002 - Jan 2005 in a subsidiary of a corporation, then at the request of the company I switched to the parent company. There was a change agreement that also reflects this. Furthermore, I received a certificate confirming that it was (due to good performance) the parent company's wish for me to switch. The existing job content is the same, just expanded, and the role has been accordingly enhanced.
I have been working in the parent company until today. Both companies are located at the same site, in the same building.
My question:
Regarding the calculation or negotiation of a possible severance payment, I would like to know if the entire period since July 2002 (until today) can be taken into account, or if I would have to start from the point of switching to the parent company (mandatory)?
How does the amount of the severance payment change if I were a member of the works council? As far as I know, I would then also have a special termination right of 12 months, and a negotiated severance payment would potentially be higher if taken to court. Are there any special conditions or a different standard to be applied in this case?
Dear questioner,
A severance payment is generally a matter of negotiation. You do not have a specific legal claim to it by law. Only if the employment relationship were to be terminated by the judge in a dismissal protection procedure, would a severance payment be awarded according to the KSchG. The amount of the claim would then be determined according to § 1a para. 2 KSchG (0.5 monthly earnings for each year of service). In the case of a judicial decision, the disputed employment relationship would be the current one, so only that specific period would be taken into account when calculating the severance payment.
However, if you wish to separate from the employer through a termination agreement, the question of mutual agreement on the amount of the severance payment would arise. It is entirely possible that you could mention your length of service since 2002 and calculate a severance payment based on that period.
Works councils are subject to special dismissal protection, which lasts up to 12 months after the end of their term, according to § 15 KSchG.
The status as a works council member indirectly affects the calculation of a severance payment, as the employment relationship is extended by law.
I hope this information has been helpful to you. If you have any further questions, please feel free to ask.
Best regards,
Andreas Scholz, Attorney
