fired

[Sherazali 56]

The only question I have is, "Can she just do anything she wants just because it is a small company with only 5 employees (when 2 of them are herself and her daughter, and the rest of the 3 are getting fired). I have been working here since January 2020 and the other two since 2018 (don't know the month).

[karin_brenig 708]

7 hours ago, Sherazali said:

The only question I have is, "Can she just do anything she wants just because it is a small company with only 5 employees (when 2 of them are herself and her daughter, and the rest of the 3 are getting fired). I have been working here since January 2020 and the other two since 2018 (don't know the month).

21 hours ago, Sherazali said:

 

 

I'm not sure - I think the rules of Kündigungsschutz (which would be relevant to handle a "regular" termination) are different for small companies.
For immediate termination (=fristlose Kündigung) even a small company has to have a valid "important reason". This important reason must be some kind of "really bad thing" that you personally did. Usually they would have given you a warning in writing (=Abmahnung) telling you to stop the specific behavior, "or else".

 

In any case, take a deep breath and go to Arbeitsamt today. You need to register as "arbeitssuchend" immediately - whether or not this termination is legally valid.

You should also team up with the other two colleagues and make an appointment with a lawyer specializing in Arbeitsrecht. You will have to fight for those three months of pay.

 

This article explains it pretty well:

https://www.klugo.de/blog/fristlose-kuendigung-erhalten-moeglichkeiten

 

or this one here:

https://www.arbeitsrecht.org/arbeitnehmer/kuendigung/5-tipps-falls-sie-eine-fristlose-ausserordentliche-kuendigung-bekommen/

[jeba 4,363]

17 minutes ago, karin_brenig said:

For immediate termination (=fristlose Kündigung) even a small company has to have a valid "important reason". This important reason must be some kind of "really bad thing" that you personally did.

Are you sure? Wouldn´t e.g. imminent bankruptcy, which can only be avoided by cutting costs (i.e. firing staff) also be a valid reason?

[murphaph 9,814]

You should also demand to know the "wichtiger Grund" that she believes exists for your dismissal without notice. She is legally obliged to tell you what it is, but only if you demand to know in writing. She does not have to tell you unless you demand to know oddly enough. As to the lawyer, you really need to make a judgement call there. What are the chances of seeing any money if the judgement goes your way (which I suspect it would as I don't think she will be able to sell it to the Arbeitsgericht that all of a sudden all 3 of you did something really bad that warranted immediate dismissal-this sort of dismissal really is only allowed where you have done something really bad like calling your boss names or stealing from he company etc. It cannot be used for "I think you should be doing a better job" type cases. These cases require at a bare minimum an Abmahnung/warning).

 

Get down to the Arbeitsamt first to clarify your entitlements and register as looking for work. This is required of you by law anyway, now that you have been informed of your dismissal.

[murphaph 9,814]

2 minutes ago, jeba said:

Are you sure? Wouldn´t e.g. imminent bankruptcy, which can only be avoided by cutting costs (i.e. firing staff) also be a valid reason?

Not according to this page:

https://www.ahs-kanzlei.de/de/kuendigung-im-insolvenzverfahren

Quote

Im Rahmen von Personalabbau und um eine mögliche Insolvenz zu vermeiden, werden Mitarbeiter oft außerordentlich und ohne Einhaltung einer Kündigungsfrist gekündigt. Solche Kündigungen sind jedoch unwirksam, da selbst eine Insolvenz eine außerordentliche Kündigung nicht rechtfertigen kann. Denn die Einhaltung der jeweils geltenden Kündigungsfristen ist laut Rechtsprechung auch einem Arbeitgeber in der Insolvenz zuzumuten. Eine außerordentliche fristlose Kündigung kann nur aus schwerwiegenden Gründen erfolgen, die eine Zusammenarbeit mit dem Mitarbeiter unzumutbar machen. Auch für Arbeitnehmer, die selbst kündigen wollen, gelten diese Kündigungsregeln. Um fristlos kündigen zu können, muss auch hier ein wichtiger Grund vorliegen. Dieser wichtige Grund kann z.B. in ausstehenden Lohnzahlungen begründet liegen. Anderenfalls kann der Mitarbeiter nur fristgemäß kündigen oder sich durch einen einvernehmlichen Aufhebungsvertrag vom Arbeitgeber lösen.

 

[optimista 5,884]

In theory she cannot do this.

In practice she will get away with it unless the law is implemented. Beware loopholes. It may not go the way you expect.

Take advice today from the Agentur für Arbeit.

[Sherazali 56]

26 minutes ago, optimista said:

In theory she cannot do this.

In practice she will get away with it unless the law is implemented. Beware loopholes. It may not go the way you expect.

Take advice today from the Agentur für Arbeit.

 

I will go there on Monday, as I still have to go to office to handover the comoany devices and get the confirmation of these things etc before 12, and Agentur closes at 12. After that the other two employees and I will discuss the possibilities of getting a lawyer and our next steps. So, I will go to the Agentur on Monday. The worst thing for one of the other employees is that she has her appointment on Monday for her Niederlasungserlaubnis, and she is worried about that situation too. 

[Sherazali 56]

Another question is, can she deliver these letters herself? Without registered post of any witnesses (if she is handing them iver to us in person)? For example, what if deny receiving any such letter and keep going to work? 

[Krieg 15,027]

39 minutes ago, Sherazali said:

Another question is, can she deliver these letters herself? Without registered post of any witnesses (if she is handing them iver to us in person)? For example, what if deny receiving any such letter and keep going to work? 

 

Yes she can.  Or she can go to your address, bring a witness with her, and put the letter in your mailbox.  That path you are suggesting is a slippery slope, not recommended.   She gave you as well Hausverbot, so showing up in the office is not a good idea, you would be trespassing.

 

Settle ALG1 ASAP.  Then do the Klage if you plan to fight it, remember you do not need a lawyer for the Klage, and that will buy time.

[murphaph 9,814]

Yep, you can also register as Arbeitssuchend (looking for work) online very easily IIRC. Monday should be fine though but don't wait any longer than that to go to the Arbeitsamt. You have to inform them within 3 working days that you have been fired or know you are going to be fired. You got the letter yesterday evening so Monday morning is the latest you want to be getting there. I expect they will be quite sympathetic and offer you some advice beyond your ALG1 entitlements. They will not appreciate how this woman is treating you guys.

 

If you proceed to Klage, please note there are two sets of fees to be paid:

1) The court's fees. You have a table of fees based on the value of what you are suing for, your missing 3 months salary, presumably net of taxes as the employer is responsible for forwarding these to the Finanzamt, but I am not sure about that aspect:

https://www.faire-integration.de/de/article/835.welche-kosten-fallen-in-einem-arbeitsgerichtsprozess-an.html

 

2) Your own lawyer's fees (if you use one). These are also determined by the Streitwert like the court's fees. You may be entitled to "legal aid" if you cannot afford your own legal fees:

https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Gebuehren_PKH.html

 

If you decide to proceed with the Klage and she settles out of court, you pay less in court fees. There is an element of poker here. You need to decide if she will go all the way to court to defend something that (according to your side of the story) is pretty much indefensible. If everything you are saying is true, her own lawyer will likely advise her to settle unless she is broke and then she might just defend the case anyway. 

 

In your situation I would go to the Arbeitsgericht and hand in the Klage without a lawyer. She will be sent a summons to court and this may be enough to get her to pay you your missing salary. But that's a call you need to make yourself. You do not have very long to decide so go to the Arbeitsamt, talk to them then make a decision about suing her. Already today you should demand in writing to know the reason for your dismissal as this may influence your next decision. Good luck.

[Sherazali 56]

Update 31.03.2023! 

 

So, after asking us to leave the office on Wednesday and don't come on Thursday, and then we receiving the termination letters yesterday evening and as mentioned asking us to give back all company devices (laptops, phones etc) back by 12 p.m today on friday (as mentioned in the letter). Today we went there and gave everything back and signed the paper for the things return. So, we returned everything at around 11:50 and signed and left. At 12:17 I receive this email from her: 

 

"

Bitte von den zuständigen Verlangen, das Frau XYZ alles was sie noch braucht , ansonsten muss ich dafür noch extra einen Anwalt einschalten um den Schaden der GmbH auszugleichen
Die 3 waren nur von der Anwesenheit und nicht von der Arbeit freigestellt , Home Office . Dafür besaßen sie eigentlich die Laptops u . ä."

What should I do now? Should I reply? She has sent me this email on my personal email (NOT on company email). 

[Sherazali 56]

21 minutes ago, murphaph said:

Yep, you can also register as Arbeitssuchend (looking for work) online very easily IIRC. Monday should be fine though but don't wait any longer than that to go to the Arbeitsamt. You have to inform them within 3 working days that you have been fired or know you are going to be fired. You got the letter yesterday evening so Monday morning is the latest you want to be getting there. I expect they will be quite sympathetic and offer you some advice beyond your ALG1 entitlements. They will not appreciate how this woman is treating you guys.

 

If you proceed to Klage, please note there are two sets of fees to be paid:

1) The court's fees. You have a table of fees based on the value of what you are suing for, your missing 3 months salary, presumably net of taxes as the employer is responsible for forwarding these to the Finanzamt, but I am not sure about that aspect:

https://www.faire-integration.de/de/article/835.welche-kosten-fallen-in-einem-arbeitsgerichtsprozess-an.html

 

2) Your own lawyer's fees (if you use one). These are also determined by the Streitwert like the court's fees. You may be entitled to "legal aid" if you cannot afford your own legal fees:

https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Gebuehren_PKH.html

 

If you decide to proceed with the Klage and she settles out of court, you pay less in court fees. There is an element of poker here. You need to decide if she will go all the way to court to defend something that (according to your side of the story) is pretty much indefensible. If everything you are saying is true, her own lawyer will likely advise her to settle unless she is broke and then she might just defend the case anyway. 

 

In your situation I would go to the Arbeitsgericht and hand in the Klage without a lawyer. She will be sent a summons to court and this may be enough to get her to pay you your missing salary. But that's a call you need to make yourself. You do not have very long to decide so go to the Arbeitsamt, talk to them then make a decision about suing her. Already today you should demand in writing to know the reason for your dismissal as this may influence your next decision. Good luck.

 

Her businesses were initially financed by her husband who is still somehow involved in these businesses (he is rich, multimillionaire). About asking for a reason in writing, she was not in the office. We delivered everything to her daughter as mentioned in the letter ( only remaining employee apart from the boss herself). Her daughter told her she went on and will be back from 11th April. 

[murphaph 9,814]

24 minutes ago, Sherazali said:

"

Bitte von den zuständigen Verlangen, das Frau XYZ alles was sie noch braucht , ansonsten muss ich dafür noch extra einen Anwalt einschalten um den Schaden der GmbH auszugleichen
Die 3 waren nur von der Anwesenheit und nicht von der Arbeit freigestellt , Home Office . Dafür besaßen sie eigentlich die Laptops u . ä."

I'm having a difficult time understanding this to be honest. Why is she talking to you about "the other three"? Did she send this to you by mistake maybe when it should have been sent to her daughter?? It looks like it was written about you guys. Is Frau XYZ you?

[Sherazali 56]

16 minutes ago, murphaph said:

I'm having a difficult time understanding this to be honest. Why is she talking to you about "the other three"? Did she send this to you by mistake maybe when it should have been sent to her daughter?? It looks like it was written about you guys. Is Frau XYZ you?

 

Frau XYZ is the name of the person who's project she is talking about (so Frau XYZ means Project XYZ). She sent the email to 3 of us ( who are getting fired), she has sent this to me on my personal email, and for other two in the company email (which they they dont have any access anymore). 

[murphaph 9,814]

Is Frau XYZ one of the people getting fired?

[Sherazali 56]

Just now, murphaph said:

Is Frau XYZ one of the people getting fired?

No, its a project that we are working on and Fraz XYZ is the contact person for that project. Since, we got fired and informed her that THE BOSS is your contact person from now on. So, she asked the boss to send her some details. And according to the email she is asking us to send her the details or she will hire a lawyer for the damages. We are fired, we returned  everything at 12 today and dont have any access to anything. And then she sends an email at 12:17 on my personal email to send her these details. I replied to her and said that eveyrthing is in the laptop which we handed over earlier today, so she can access everything from there and I dont have any access to anything anymore. 

[Krieg 15,027]

It is very difficult to understand what she means.  If Frau XYZ is a customer it seems you have still to provide her what she needs.  And that you were released only from going to the office but not from working.   The last sentence is the most weird one, is she saying that you have to use your own hardware to do such work? Or that for that you need the hardware? 

[Sherazali 56]

6 minutes ago, Krieg said:

It is very difficult to understand what she means.  If Frau XYZ is a customer it seems you have still to provide her what she needs.  And that you were released only from going to the office but not from working.   The last sentence is the most weird one, is she saying that you have to use your own hardware to do such work? Or that for that you need the hardware? 

I think she is talking about Wednesday and Thursday, when she told us to leave the office and dont come on Thursday. She is implying that she meant we leave the office  (and not stop working somehow). 

[murphaph 9,814]

Ok I get it. She is all over the place, quite unhinged. She told you in writing to not work on Wednesday and go home and stay home on Thursday. She didn't explicitly say that you were released from work on Thursday but as she had already demanded the laptops back on Wednesday and was annoyed that they hadn't been handed over already, she will not be able to claim that you guys were expected to work on Thursday:

 

Quote

Leider wurde meine Freistellung von der Arbeit für heute von vor einer Stunde von euch mit dem Kommentar zurückgewiesen, ihr wollt dies unbedingt schriftlich von mir haben, da das Verlassen eures Arbeitsplatzes von mir im Nachhinein zu eurem Nachteil anders dargestellt werden könnte.

 

Ich empfinde es als Unverschämtheit, mir zu unterstellen, ich könnte so handeln.

 

Ich stelle euch hiermit für den Rest des heutigen Tages und morgen von der Anwesenheit im Büro frei.

 

Heute morgen wurden leider die Firmeneigenen Geräte etc. wie in meiner heutigen email angewiesen nicht von euch im Büro abgegeben mit dem Hinweis, dass die darauf befindlichen privaten Daten erst übertragen werden müssten. Dies könnte mehrere Wochen dauern, wie lange genau wäre nicht sicher vorauszusagen. Das ist inakzeptabel. 

 

There is no way she can plausibly claim that she intended for you to do home office on Thursday. Not a hope a judge would accept that argument given what she wrote above. Don't worry about that stuff and don't worry about her threats to engage a lawyer. You are fired. You handed your work materials back. If she mails you again tell her you are considering her behaviour harassment, which it is!

[optimista 5,884]

Totally wacky. Headless chicken in panic mode. Much flapping of wings. Feathers flying. Oh dear. She is not handling this well.

 

Try to be glad you are out of it. Easily said, I know.

 

Do not communicate with the woman further. Or any of her clients.

 

Get thee to the Arbeitsamt soonest. This too shall pass. Although it really shouldn t be this way. Stinks.