Termination and release until the end of employment
October 25, 2009 | 25,00 EUR | answered by Michael Vogt
I am facing a dismissal for operational reasons. My employment contract states that the employer may release me from work.
It appears that my employer intends to terminate my employment for operational reasons and release me according to the notice period.
1. It can be assumed that the release was mutually agreed upon and therefore the insurance obligation expires after one month.
2. What if we were to conclude a settlement agreement in which the release is not mentioned. Would this be considered a mutual release?
3. Or should a settlement agreement explicitly state revocable release?
Dear Seeking Advice,
Your question may be answered based on the facts you have provided and taking into consideration your contribution as follows:
With its fundamental decision of 24.09.2008, the Federal Social Court clarified that even a consensual and irrevocable exemption from the provision of work does not lead to the termination of the social security employment relationship. (BSG, judgment of 24.09.2008, B 12 KR 22/07 R)
Accordingly, the insurance obligation in social security does not end after one month.
I strongly advise against a termination agreement, as according to the case law of the BSG, this can lead to a waiting period of 12 weeks for unemployment benefits. This waiting period not only results in the suspension of the entitlement to unemployment benefits for three months, but also reduces the total duration of your entitlement by a quarter.
If your employer wishes to terminate your employment and provide you with a severance payment, you should consider using the option provided in § 1a KschG.
I quote § 1a KschG for your information as follows:
"§ 1a
Severance claim in the event of dismissal for operational reasons
(1) If the employer terminates the employment due to urgent operational requirements under § 1 (2) sentence 1 and the employee does not file a lawsuit by the deadline of § 4 sentence 1 to establish that the employment relationship has not been terminated by the dismissal, the employee is entitled to a severance payment upon expiry of the notice period. The claim requires the employer's indication in the termination declaration that the dismissal is based on urgent operational requirements and that the employee can claim the severance payment if the deadline for filing a lawsuit is missed.
(2) The amount of the severance payment is 0.5 monthly earnings for each year of the duration of the employment relationship. § 10 (3) applies accordingly. When determining the duration of the employment relationship, a period of more than six months is rounded up to a full year."
I hope that my answer has provided you with an initial overview of the legal situation.
Please note that this answer, based on the information you provided, is only a first legal assessment of the situation. It cannot replace a comprehensive evaluation. By adding or omitting relevant information, the legal assessment may vary significantly.
Feel free to contact me through the follow-up option on this portal or via my email address.
For representation beyond this initial consultation, my law firm is also available to assist you.
I wish you a pleasant evening and remain
Yours sincerely,
RA Michael Vogt
