October 15, 2018
Authored by: Michael Magotsch
The German Federal Labor Court (BAG) recently held, that employers are not prevented from using grounds which failed to justify a termination in order to file for a subsidiary motion to end employment.
Under German dismissal law, employees can only be dismissed on socially justified grounds. If an employee brings a claim relating to their dismissal and the Court finds that the employer cannot demonstrate a satisfactory socially justified reason, the dismissal will be invalid meaning the employer will have to re-employ them and they will be awarded back pay. However German dismissal law also provides for a remedy to allow employers to file a motion to end employment with employees during wrongful dismissal proceedings. Where the courts find that employment was not effectively terminated by the dismissal, but the employer cannot reasonably be expected to continue employing the plaintiff, the Court shall upon the employer’s motion dissolve the employment relationship. As a result the employer may be ordered by the court to make an appropriate severance payment (Sec. 9 KSchG/ Wrongful Dismissal Act).
Until now, German courts held that employers may only justify such a motion on grounds which were not already considered in the wrongful dismissal proceedings, for example the termination itself has irreparably damaged the relationship between the parties. Now the BAG held, that employees who have been dishonest in the wrongful dismissal proceedings are not entitled to this protection.
In the case in question, the employee was employed at a company manufacturing battery cells under extreme