BAG on effectiveness of ordinary notice of dismissal issued as an alternative
The Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court, has ruled that an ordinary notice of dismissal was effective despite a lack of information regarding when the employment relationship was to come to an end (Az.: 6 AZR 782/14).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If an employer issues exceptional notice of dismissal, in most cases it will also issue ordinary notice of dismissal as an alternative. This is meant to ensure that the employment relationship is brought to an end. The Bundesarbeitsgericht had to grapple with the issue of whether a notice of ordinary dismissal issued as an alternative with effect from the earliest possible date was effective.
In the case in question, the employer had issued an employee with notice of exceptional dismissal with immediate effect. In case the notice of exceptional dismissal proved to be ineffective, the employer also issued as an alternative precautionary measure ordinary notice of the employment relationship“s termination with effect from the earliest possible date.
The respective labour court took the view that the exceptional notice of dismissal was ineffective. The issue of whether the ordinary notice of dismissal was issued effectively ultimately had to be ruled on by the BAG. The employee considered the ordinary notice of dismissal to be ineffective as well, arguing that it was not precise enough in relation to when the employment relationship was to come to an end and that the notice period for termination was not to be found in the employment contract.
The BAG held that the ordinary notice of dismissal had been effective, stating that while the date when the employment relationship would come to an end could not be inferred from the letter of dismissal, the intended date of termination could be derived from the exceptional notice of dismissal declared as having priority. The Court ruled that it must be apparent to the dismissed employee when the employment relationship will come to an end. Termination with effect from the earliest possible date was said to be permissible if the notice period for dismissal is known to the employee or is identifiable. If this is the case, the notice of dismissal is typically understood to mean that the employment relationship is supposed to end at the earliest possible date taking into account provisions from statutes, collective bargaining agreements and contracts.
The Court went on to say that should it be the case that ordinary notice of dismissal is not issued in isolation but as an alternative to exceptional notice of dismissal if the latter is ineffective, then it is evident to the employee that the intention is for the employment relationship to end upon receipt of notice of immediate dismissal. The Court held that it therefore no longer came down to whether the employee is able to ascertain without much difficulty the notice period for termination for the ordinary notice of dismissal issued as an alternative.
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