Ask a lawyer on the topic of Labor law

Termination notice given verbally during parental leave (different job, different city)

February 21, 2010 | 20,00 EUR | answered by Steffan Schwerin

Good day!
In an older post, I have already read that a change termination can be issued before the end of parental leave. My parental leave ends in spring '10; I have been with the company for eight years. I am a single parent with one child.
I had a meeting last week where I was informed that my job in the indoor service in BW no longer exists (due to lack of customers).
I am now allowed to work in the field service in NRW - at 50% to 100% of my choosing, the location of the field service is 470 km away! If I decline the offer (so far without details, salary information, etc.), the only alternative is that my employer terminates me with a severance payment. I should make a decision at the beginning of next week!
1. Was the meeting already an effective change termination?

2. To what extent does the Dismissal Protection Act apply here? Background: The GmbH is a sales branch, with only 2 locations in NRW and BW, no works council; the parent company - operating under a different name - is based in Northern Europe. After I started my parental leave, a new colleague was hired indefinitely in the BW office, single without dependents. Another colleague has been on parental leave since '09.
The office in NRW currently has about 8 employees (excluding field staff), while there are about 5.5 employees in BW. At the start of my parental leave in '07, we had 6.5 employees in BW including management, and about 4-5 employees in NRW. Since I joined the company, there are still 4 (BW) + about 4 (NRW) "old" employees from '02.
The group incurred losses last year and planned to, or already started, laying off over 1000 positions (mostly at the group level).

3. Shouldn't the young single new colleague be "transferred" to NRW through a social selection process?
4. If I do not make a decision at the meeting in 8 days, will there be consequences such as an extraordinary (change) termination? Or nothing until the end of the parental leave? By the way, I am 40+, impending unemployment would be a great hardship.
5. Would this be reflected in a possible severance payment?

Thank you for your time!

Thank you! Two people thank you

Steffan Schwerin

Dear questioner,

I will answer the questions you have raised, taking into account the circumstances described and your input, as follows:

1. Was the conversation already an effective termination by mutual agreement?

No, such a termination must be in writing.

2. To what extent does the Employment Protection Act apply here? Background: The GmbH is a sales branch, with only 2 locations in NRW and BW, no works council; Parent company - operating under a different name - based in Northern Europe. After the start of my parental leave, a new colleague was hired indefinitely at the BW office, single without dependents. Another colleague has been on parental leave since 2009. The NRW office currently has about 8 employees (excluding field staff), and BW has about 5.5 employees. When I started my parental leave in 2007, we had 6.5 employees including the management in BW and 4-5 employees in NRW. Since I joined the company, there are still 4 (BW) + about 4 (NRW) "old" employees from 2002. The group incurred losses last year and planned to or already cut over 1000 positions (mostly at the group level).

The Employment Protection Act applies with 10 employees. If there are only a total of 8 employees here, the Employment Protection Act (KSchG) does not apply.

If there are indeed 8 + 5, so 13 employees, the KSchG also applies.

3. Shouldn't the young single new colleague be "transferred" to NRW through a social selection process?

If the KSchG applies, you can challenge the social selection process and have it reviewed. It would then be necessary to consider whether the other colleague should have been transferred.

If the KSchG does not apply, there is no social selection process.

4. If I do not decide at the meeting in 8 days, do I have to face consequences such as an extraordinary (amendment) termination? Or nothing until the end of parental leave?? By the way, I am 40+, an impending unemployment would be a great hardship.

There are no grounds to fear an extraordinary termination, especially as long as parental leave is still in place.

Your employer must issue the amendment termination to you, and you can then decide - you can file a lawsuit within 3 weeks.

5. Does this result in a possible severance payment?

If there is no future for you in the company, you should come to an agreement with your employer and negotiate a severance payment.

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Yours sincerely,

Steffan Schwerin
Lawyer

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