Getting fired with an unlimited contract

114 posts in this topic

They are trying to fire him/her immediately. If for some reason the dismissal without notice should be contested and deemed invalid, the employee is still being laid off and the notice period has already started. (not a lawyer, not legal advice) 

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that's why also the question about the ordentlich part... can the Kündigung be without notice and with a term of 3 months at the same, or was this kind like a choice ? He was not given a choice just the paper and told to pack up and leave ... so what about salary how much he will still receive ?

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Just now, bbogdanmircea said:

that's why also the question about the ordentlich part... can the Kündigung be without notice and with a term of 3 months at the same,

 

Did you see Anns answer? Tell that guy (I guess it's you) to lawyer up, contest the termination without notice (to get at least paid until October 31) and inform the Arbeitsamt within 3 days. 

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No. It's not a choice. The second part is just covering their backsides in case he were to be successful in fighting the firing without notice. 

 

Let's say they didn't have the hilfsweise bit in there and he fought the fristlose Kündigung and won, they would have to issue a new ordentliche Kündigung and keep paying until the end of the notice period. 

 

This way they start the clock on the ordentliche Kündigung and still try to get the employee out earlier. 

 

Im sorry. It's a very difficult situation. 

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Ok, thanks . Is this even legal ? 

How much will he receive salary in case he does not contest ? 

And how much ist he forbidden from unemployment ?

 

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8 minutes ago, bbogdanmircea said:

Ok, thanks . Is this even legal ? 

 

Yes.

 

8 minutes ago, bbogdanmircea said:

How much will he receive salary in case he does not contest ? 

 

Only the salary until the date of the termination without notice. Until today, I guess.

 

8 minutes ago, bbogdanmircea said:

And how much ist he forbidden from unemployment ?

 

'He''s not "forbidden from unemployment", you mean blocked on unemployment pay. That depends, in theory up to 12 weeks.

 

 Are you sure that 'he' is eligible at all? How long did he work and pay for unemployment insurance?

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Very difficult situation indeed .

5 years of work

Seems they want to make sure he doesn't have the money to go to court ... and if he has he can only win 3 months salary ... which will barely cover the lawyer I guess .

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7 hours ago, bbogdanmircea said:

Very difficult situation indeed .

5 years of work

Seems they want to make sure he doesn't have the money to go to court ... and if he has he can only win 3 months salary ... which will barely cover the lawyer I guess .

No. He can challenge both terminations in court.

First he has to successfully challenge the immediate termination. We don't know the reason for such termination. He may or may not have a leg to stand on.

It is absolute standard practice to combine an immediate termination with a second termination with due notice just in case. This is no indication that the employer believes that the reasons for immediate termination will to be valid. However, one can obviously challenge this second termination in court as well. And one can prevail with this as well.

 

There is help for people with low or no income to seek for legal support. Our tax dollars at work. However, an application for such legal help will be checked for financial need as well as chances to win a court case. 

 

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Thank you for giving some hope .

Any gross estimation about what the lawyer fee will be for challenging the termination in court ?

The termination is for a silly motivation, the boss wanted him out so he invented some stuff .

The second termination is not a right of the employer ? On what grounds can it be challenged ?

Must he go today at the Arbeitsagentur to apply for unemployment ?

 

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9 hours ago, bbogdanmircea said:

Thanks, the person who got was told they don't want him to be at work anymore . 

Is he still payed until 31.10.2018 ?

This is the confusing part, is this an ordentlich or außerordentlich Kündigung ?

 

1. Don't sign anything.

2. Get a lawyer.

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21 minutes ago, bbogdanmircea said:

Thank you for giving some hope .

Any gross estimation about what the lawyer fee will be for challenging the termination in court ?

The termination is for a silly motivation, the boss wanted him out so he invented some stuff .

The second termination is not a right of the employer ? On what grounds can it be challenged ?

Must he go today at the Arbeitsagentur to apply for unemployment ?

 

 

The costs of the lawyer fees would be something around 1000 to 3000 EUR depending on the salary of the person.  That's why having lawyer insurance is highly recommended, but now it is too late.

 

Yes, the person should go like today to the Agentur für Arbeit, they can as well give him advice there if the budget is very low.

 

If the person is really a low income person then it would be possible to apply for a lawyer paid by the state.  But you have to start moving fast.   You have 3 weeks if I remember correctly to contest the termination letter, and this can be done only by a lawyer and must be filed in a court.

 

Probably the best case scenario would be to contest the termination, and then negotiate with the employer and get some compensation, maybe 4 to 6 months of salary.  

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Ok thanks .

Income is not low around 5000 gross, he has a lawyer that already contested the Abmahnung he  received 2 weeks before getting fired .

Of course will be tough to live for 3 months without income and pay the lawyer, but he should fight for his right .

Thanks for the fee info, how long should it take to get a decision from the court ? 2-3 months ?

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8 hours ago, bbogdanmircea said:

5 years of work

 

12 minutes ago, bbogdanmircea said:

Income is not low around 5000 gross,

 

Of course will be tough to live for 3 months without income and pay the lawyer, but he should fight for his right .

 

<rant> not something to think of now, but after this is over someone needs to reconsider their lifestyle </rant>

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19 minutes ago, bbogdanmircea said:

Ok thanks .

Income is not low around 5000 gross, he has a lawyer that already contested the Abmahnung he  received 2 weeks before getting fired .

Of course will be tough to live for 3 months without income and pay the lawyer, but he should fight for his right .

Thanks for the fee info, how long should it take to get a decision from the court ? 2-3 months ?

 

OK, 5K income you would expect the person is an adult with some sort of skills and have some plans in his life.  But the world is strange nowadays.

 

The case in court might take from 6 to 12 months.  And then it might be appealed if one of the parties want.  So showing you are willing to go until the end and looking very sure about it is a major point to your side because normally the employer would not want to go through it because it is a headache and costs money, specially if there is a chance the employee wins the case.  So once the Klage (legal action) if filed by your lawyer you will have enough time to negotiate something.  Actually everyone prefers the case to end up with a deal that is accepted by both parties, both lawyers make more money in that way and the judge has to do less paperwork.   You will have two Gutetermine in which both parties can sit down and negotiate.   You do not have to go to the first one, your lawyer can go alone and this is what it is recommended, because everyone will put too much pressure on you to accept a deal.   Then you are required to go to the second one, or you might choose not to go but there is a financial penalty if you do not go (around 1000 EUR).   Then in the third appointment you get the final decision from the judge.

 

If your "friend" didn't do anything stupid, then there is no reason for the termination on the spot, this is usually only if you steal something, or cheat on travel expenses, or something like that.   

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3 hours ago, bbogdanmircea said:

...he has a lawyer that already contested the Abmahnung he  received 2 weeks before getting fired .

 

Don't they have to give you at least 3 Abmahnungen before firing you? But at least his/her/your lawyer knows what's coming.

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36 minutes ago, syedalisajjad said:

Hi, 

 

he still gets paid until 31.10.2018 since this would be his last working day at the company. 

 

Only if he contests the termination without notice. 

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Thanks for the replies, my friend finds them encouraging although the lawyer fee is scary .

How much money would he get if the firing and Abmahnung is illegal in court ? 

One last question, if he had 20 days of holiday left, will he get something for them in case of the immediate firing ?

This would help him for sure ... but I suppose not .

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I worked for a client whose HR department terminated a production line worker. He had 3 Abmahnungen, BUT the Abmahnungen were not for EXACTLY the same issue. In court the company lost and was hit with a €90k judgement PLUS the remainder of what the contract said had to be paid out for termination. The company was also forced to pay all of the back pay between the time of the wrongful termination and the court judgment. Do your best to keep your friend on an even keel. Take them to a doctor for the stress that your friend is OF COURSE feeling. Oh, and give your friend this link to help laugh for a moment.

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