Category Archives: Politics Law Society

Politics Law Society

LAG Köln: Informally admonishing an employee not necessary before issuing formal written warning

LAG Köln: Informally admonishing an employee not necessary before issuing formal written warning

LAG Köln: Informally admonishing an employee not necessary before issuing formal written warning

An employer is allowed to issue a formal written warning without having previously informally rebuked an employee for his misconduct. That was the verdict of the Landesarbeitsgericht (LAG) Köln [Regional Labour Court of Cologne] (Az.: 12 Sa 381/16).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In many cases, it is necessary for the employee to have received a formal written warning before notice of dismissal can be effectively issued. The formal warning brings the employee“s attention to his breach of duty and gives notice that he could be faced with employment-related consequences such as termination of the employment relationship in the event of a repeat infringement.

While a formal written warning is frequently a prerequisite to effectively dismissing an employee, the employer need not have informally admonished the employee for his misconduct before issuing the formal warning. That was the decision of the Landesarbeitsgericht Köln in its judgment of September 20, 2016. The LAG ruled that a formal written warning cannot be considered disproportionate and unlawful by reason of the fact that the employer could have initially taken a less severe measure by informally rebuking the employee.

In the case in question, a forwarder had issued one of its drivers with a formal written warning. The latter had transported glass without having installed the supplementary buffer beam to secure the goods. As a consequence, part of the cargo was broken. The employer subsequently issued a formal warning, claiming that the driver had failed to properly secure the cargo despite this having been absolutely necessary. The driver then sued to have the formal warning removed from his personnel file, arguing that it had not been evident to him that he was transporting glass and that an informal admonishment would have been sufficient.

The LAG Köln held that the employer had been entitled to issue the formal written warning, as the driver had indisputably failed to secure the cargo as prescribed. A prior rebuke was not necessary. Considering the principle of proportionality, the Court went on to say that there was nothing necessitating that the employer informally admonish the employee before issuing a formal warning, stating that the employee“s attention was ultimately drawn to his misconduct and the situation clarified by means of the formal warning, i.e. that this would not be tolerated. In this way, the employee is called on to conduct himself in a manner that is consistent with his contractual obligations. The Court noted that a formal warning is not associated with any immediate legal consequences and serves as a warning, unlike when in an employee is merely informally rebuked.

https://www.grprainer.com/en/legal-advice/employment-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

Misleading advertising: Exclusive must mean exclusive

Misleading advertising: Exclusive must mean exclusive

Misleading advertising: Exclusive must mean exclusive

If something is advertised as exclusive then it ought to remain exclusive. A ruling of the Landgericht (LG) Hamburg [Regional Court of Hamburg] demonstrates that a lack of touted exclusivity can render the advertising misleading.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A cosmetics manufacturer had advertised a number of its products as exclusively available at pharmacies. While the company itself had in fact sold its products solely in pharmacies, the products in question also found their way onto what is referred to as the „grey market“ via the product lines of online merchants, retailers and drugstores. For this reason, the Landgericht Hamburg ruled in its judgment of November 17, 2016 that the advertising was misleading and violated Germany“s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act] (Az.: 327 O 90/16).

The defendant company took the view that its „exclusive advertising“ was legitimate, arguing that it had only sold the products in pharmacies and the average visitor would not have a different understanding of the promotional statements. However, the LG Hamburg reached a different conclusion. The Court held that the promotional statements at issue were objectively inaccurate, as the products advertised were also available outside of pharmacies. The advertising was said to include no qualifying statement indicating that the defendant itself would only be selling the products in pharmacies. The Court went on to say that there was therefore a risk of consumers being misled by this advertising and not concluding that there were also offers on the grey market.

It also held that it is not unlikely for consumers to opt for an exclusive product, especially since pharmacies are rated as particularly trustworthy. As a result, competitors would have poorer prospects when it came to selling their products. The LG Hamburg therefore concluded that a right to damages was justified.

When it comes to advertising, it is easy for boundaries to be crossed, even unwittingly, and thus give rise to violations of competition law. Formal written warnings, damages claims and injunction suits are possible consequences. Lawyers who are experienced in the field of intellectual property law can advise businesses on their advertising measures as well as assist in fending off or enforcing claims.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

OLG Frankfurt: The term „centre“ potentially misleading

OLG Frankfurt: The term „centre“ potentially misleading

OLG Frankfurt: The term "centre" potentially misleading

A ruling of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt] shows that difficulties can arise if there is a desire at a later date to change the name of a company which was taken over and its name carried forward (Az.: 20 W 411/12).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In the case before the Oberlandesgericht Frankfurt, an optician had taken over a specialist store in the relevant field from the previous owner. The former continued the business under the same name with the addition of the phrase „eingetragene Kauffrau“ (registered merchant/trader) and had the firm entered into the commercial register as such.

Several years later, there was a desire to add the word „Sehzentrum“ (visual centre) and register the business under the new name. However, this proved challenging. The OLG Frankfurt first of all noted that continuing an existing company is generally only permissible if there is no doubt regarding the identity of the former and continued firm, stating that this condition had been met because the name had merely been augmented with the required phrase „eingetragene Kauffrau“ pertaining to the business“s legal form. It also ruled, however, that any further changes while fundamentally adhering to a policy of continuing the former business were only acceptable under a limited set of circumstances; for instance, if changing the name is desirable from the perspective of the general public in the event that the previous scope of the business is to be restricted or expanded or the company“s head office relocated, or the prevailing situation has since changed to such an extent that the owner of the company can objectively be said to have a justified and legitimate interest in changing the firm“s name.

Notwithstanding this, the choice of the word „Sehzentrum“ in rebranding the company was said to be misleading and therefore unlawful. The Court held that the average consumer would take the term „centre“ to mean a business of considerable scale and importance, with this potentially being key to consumers“ decisions. The OLG went on to say that this scale or importance did not apply to the present case. As such, the term „Zentrum“ was said to be liable to mislead.

Misrepresentation and other violations of competition law can have far-reaching consequences. Lawyers who are experienced in the field of competition law can take preventative measures to ensure that these kinds of violations do not occur in the first place as well as assist in enforcing and fending off claims arising from infringements of competition law.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/competition-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

OLG Karlsruhe: „Lightly salted“ not permissible in advertising

OLG Karlsruhe: „Lightly salted“ not permissible in advertising

OLG Karlsruhe: "Lightly salted" not permissible in advertising

Advertising for packet soup for children featuring the statement „mild gezalsen“ (lightly salted) is contrary to the Health Claims Regulation and therefore unlawful. That was the verdict of the Oberlandesgericht (OLG) Karlsruhe [Higher Regional Court of Karlsruhe] (Az.: 4 U 218/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Health claims on foodstuffs need to be consistent with the Health Claims Regulation. Advertising for packet soup for children featuring the statement „lightly salted“ violates the Regulation and is accordingly unlawful. That was the verdict of the Oberlandesgericht Karlsruhe in its ruling of March 17, 2016.

A consumer protection group had objected to the printed statement „Mild gesalzen – voller Geschmack“ (Lightly salted – Full of flavour) on the packaging of packet soup, claiming that the soups in question were by no means lightly salted but merely contained less salt than other packet soups. The consumer advocates viewed this as a violation of the European Regulation on Health Claims. While the request for an injunction was successful before the OLG Karlsruhe, the Court granted permission to appeal to the Bundesgerichtshof, Germany“s Federal Supreme Court.

According to the OLG Karlsruhe, the term „mild gesalzen“ is a nutrition claim, and these kinds of claims should only be made if they are presented in an annex and are consistent with the Health Claims Regulation. The Court stated that claiming a foodstuff is low in sodium and salt, or any claims which give consumers a similar impression, is only permissible under the Regulation if the product does not contain more than 0.12 grams of sodium or the equivalent amount of salt per 100 grams / ml. However, the packet soups were said to exceed this threshold. The Court did not accept the objection that the salt content was significantly lower in comparison to other packet soups, ruling that it would have been necessary to highlight the quantifiable difference in salt content vis-à-vis comparable soups. In the absence of this mandatory information, the comparative statements were said to be incomprehensible to consumers.

Advertising can often prove to be a bit of a tightrope walk for businesses, particularly in relation to food products. Violations of competition law can result in formal written warnings, injunctions suits and damages claims. Lawyers who are versed in the field of competition law can assist businesses in fending off or enforcing claims arising from infringements of competition law.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

BGH: Notarized agreement decisive, not the draft agreement

BGH: Notarized agreement decisive, not the draft agreement

BGH: Notarized agreement decisive, not the draft agreement

In cases of doubt, it is the notarized agreement that counts and not a draft contract whose content deviates from the former. That was the verdict of the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, in its judgment of June 10, 2016 (Az.: V ZR 295/14).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A purchase agreement for real estate needs to be certified by a notary. Should a dispute arise regarding the content of the purchase agreement, it is the wording of the notarized document that is decisive and not that of the draft agreement whose content deviates from the former. This has been confirmed by the BGH.

In the instant case, the plaintiff had acquired land with a hall built on it from the defendant. Before the agreement was definitively concluded, the notary sent both parties a draft version of the agreement pertaining to the real estate purchase. The draft stated, among other things, that the land had a hall built on it and that the buyer was purchasing the land in its present age-related condition. The notary was more specific in the notarized purchase agreement. For instance, he specified the size of the hall as 640 m². Furthermore, the buyer was to acquire the property together with the furnishings.

The buyer ultimately demanded payment of damages from the seller, justifying this with reference to the hall being only 540 m² and claiming that the fitted kitchen had been removed before the property was handed over. The claim was unsuccessful before the courts of lower instance, as the parties were said to have made no arrangements indicating a specific size for the hall or concerning the sale of furnishings. The BGH, on the other hand, reached a different conclusion.

The Karlsruhe judges ruled that the text of the notarized purchase agreement was of paramount importance. They held that the notarized purchase agreement was a public deed, and that these kinds of documents testify that the statements made correspond with the written content. They also stated that there is a presumption that the deed is complete and accurate. The Court went on to say that this presumption is not rebutted by presenting a contrary draft agreement, since this would contradict the purpose of notarial certification. It concluded that a draft is not sufficient as a conclusive record of the parties“ intentions.

With this ruling, the BGH has once again clearly emphasised the significance of certification by a notary. Before a notarized purchase agreement is signed, its content should therefore be carefully reviewed. Lawyers who are versed in the field of sales of goods law can offer advice.

https://www.grprainer.com/en/legal-advice/commercial-law/sale-of-goods-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

Expiration of holiday entitlements: BAG appeals to European Court of Justice

Expiration of holiday entitlements: BAG appeals to European Court of Justice

Expiration of holiday entitlements: BAG appeals to European Court of Justice

It is common for disputes to arise under employment law concerning compensation in lieu of holiday entitlements. According to German law, holidays that have not been taken expire at the end of the reference period.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In principle, employees are entitled to a certain number of holidays per year. The issue of whether employees are entitled to compensation of lieu of this if they do not take full advantage of their right to apply for leave of absence is contentious.

According to German law, employees need to request leave of absence for holidays if this entitlement is not to expire without being replaced at the end of the reference period. The employer, on the other hand, is not obligated to set holidays for the employee of its own accord. Having said that, the Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court, has raised the issue of whether European regulations preclude the application of this national rule and appealed to the Court of Justice of the European Union (CJEU) to clarify the matter.

The case in question concerns a worker who was employed for more than 12 years in total as a researcher on the basis of several fixed-term employment contracts. A few weeks before the employment relationship finally came to an end, the employer prompted the researcher to make use of his outstanding holiday entitlement. However, the latter only spent two days on vacation and asked his employer to cash out or compensate him for the remaining 51 holidays.

The courts of lower instance granted his claim for payment in lieu of holidays. The Bundesarbeitsgericht, on the other hand, expressed doubts, stating that according to German case law holiday entitlements expire at the end of the leave year. It went on to say that holiday entitlements generally lapse in the absence of grounds justifying their transfer pursuant to sec. 7 para. 3 sent. 2 of the Bundesurlaubsgesetz (BurlG), Germany“s Federal Holiday Act. Moreover, the employer is not obliged to grant leave of absence if no request for leave is made, or force the employee to go on holiday. The Court held that whether European law precludes the application of these rules under German law has yet to be clarified by the CJEU. The CJEU has since been called on to provide definitive clarity in relation to this issue.

When it comes to legal disputes relating to the workplace or drafting detailed employment contracts, lawyers who are experienced in the field of employment law can offer advice.

https://www.grprainer.com/en/legal-advice/employment-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

Corporate INTL Global Awards 2017: GRP Rainer receives awards for best law firm in the fields of commercial law and tax law

Corporate INTL Global Awards 2017: GRP Rainer receives awards for best law firm in the fields of commercial law and tax law

Corporate INTL Global Awards 2017: GRP Rainer receives awards for best law firm in the fields of commercial law and tax law

GRP Rainer Rechtsanwälte has once again received awards, this time for the year 2017, from Corporate INTL for best law firm in the fields of commercial law and tax law in Germany.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The renowned British magazine Corporate INTL is one of the leading business magazines for entrepreneurs, consultants and financial service providers. The awards have been allocated annually since 2008. Law firms in a variety of legal fields are among those that receive accolades. As in 2016, the awards for best law firm in the fields of commercial law and tax law in Germany also went to GRP Rainer Rechtsanwälte in 2017. Receiving this prestigious prize for the second time is testament to the fact that GRP Rainer Rechtsanwälte has not only maintained its high level of expertise but continues to build upon this.

In addition to its core competencies in the fields of commercial law and tax law, GRP Rainer also has a great deal of experience and extensive expertise in related legal fields such as business law, corporate and company law, trademark law, antitrust law and competition law. This is the only way we can meet our commitment to provide our clientele with sound and solution-oriented advice from a single source.

The fact that GRP Rainer Rechtsanwälte has once again received these Corporate INTL Global Awards demonstrates that this approach and the commitment of the entire legal team has been well received by our clients, as satisfied clients are a prerequisite to receiving these distinctions. Strict criteria need to be met to be nominated for the awards. The law firms that make the final round of selection are then subject to another thorough review. A major factor here is, of course, the degree of professional expertise, but the quality of the service offered to clients is also assessed.

The accolades from the Global Awards 2017 are a recognition of GRP Rainer“s achievements as well as an incentive for the firm to strengthen its distinguished reputation as an international law firm and further build on its expertise. In this way, we can continue to meet the high standards in providing solid legal advice in the global economy.

https://www.grprainer.com/en/legal-advice/commercial-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

CJEU: Labour leasing through members of a sisterhood

CJEU: Labour leasing through members of a sisterhood

CJEU: Labour leasing through members of a sisterhood

The members of a sisterhood may also fall within the ambit of the regulations pertaining to what is termed labour leasing or temporary employment. That was the verdict of the Court of Justice of the European Union (CJEU) in its ruling of November 17, 2016 (Az.: C-216/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The directive on temporary employment might also apply in the event that a sisterhood lends out its members to clinics and nursing facilities. The was the verdict of the Court of Justice of the European Union.

While the sisterhood as a registered association does not aim to generate a profit, its members carry out their activities full time either at the sisterhood or within the scope of loan-out agreements in clinics as well as other healthcare and nursing facilities in return for monthly remuneration. In addition, the members receive other benefits such as holiday entitlements and continued payment of remuneration in the event of sickness.

One member of the sisterhood was supposed to be sent to provide nursing services at a hospital based on what is referred to as a „Gestellungsvertrag“ (loan-out agreement) between the clinic and the sisterhood, with the clinic bearing the staff costs and paying an administration fee. However, the works council exercised its veto against this, arguing that lending out the woman on the proposed basis was not temporary and violated Germany“s Arbeitnehmerüberlassungsgesetz (AÜG) [Temporary Employment Act]. The clinic claimed that members of the sisterhood were not employees according to national law, as no employment contract existed between them and the sisterhood.

The CJEU held that even if the members of the sisterhood were not employees under German law, there were many indications that they were employees pursuant to the directive on temporary employment. This is because the members offer their labour and receive remuneration in return. The Court ruled that there were a number of indications that also revealed that the members of the organization enjoyed the same protection as employees. It went on to say that it was irrelevant whether the sisterhood intended to turn a profit. It offers services and receives compensation in return. For this reason, the Court concluded that it could be assumed that economic activity in terms of the directive on temporary employment was being carried out. As such, the CJEU proceeded on the assumption that the directive on temporary employment was applicable here as well. The final decision needs to be made by the Bundesarbeitsgericht, Germany“s Federal Labour Court.

Labour leasing is an important factor for many businesses and industries. Lawyers who are experienced in the field of employment law can advise on issues relating to temporary employment.

https://www.grprainer.com/en/legal-advice/employment-law/temporary-employment.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

LAG Rheinland-Pfalz: Dismissal with immediate effect for causing serious offence valid

LAG Rheinland-Pfalz: Dismissal with immediate effect for causing serious offence valid

LAG Rheinland-Pfalz: Dismissal with immediate effect for causing serious offence valid

Seriously offending one“s work colleagues constitutes good cause justifying exceptional notice of dismissal with immediate effect. That was the verdict of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland-Palatinate] (Az.: 4 Sa 350/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Even if there is a relaxed atmosphere at a given workplace, boundaries still need to be observed. Seriously offending work colleagues, for instance, cannot be justified with reference to an easy-going atmosphere. On the contrary, it may result in exceptional notice of dismissal with immediate effect, as demonstrated by a ruling of the Landesarbeitsgericht Mainz from May 18, 2016.

In the instant case, a nurse had received both exceptional notice of dismissal with immediate effect and, in the alternative, ordinary notice of dismissal. She had seriously offended a colleague multiple times in a text. This wasn“t the first time that the nurse had drawn attention to herself, having already received a formal written warning for causing offence, among other things. Her action for unfair dismissal was unsuccessful.

The LAG Rheinland-Pfalz held that there had been good cause rendering dismissal with immediate effect effective, stating that seriously insulting one“s work colleagues could constitute a severe violation of an employee“s duties and is in and of itself sufficient to justify exceptional notice of dismissal with immediate effect. The Court ruled that in view of the severity of the breach of duty, the present case did not require a previous formal warning. Nonetheless, the nurse had already received a formal warning for similar conduct. Moreover, after weighing up the respective interests, there was still no grounds for precluding exceptional notice of dismissal. The Court went on to say that while the nurse“s nearly 20 years with the employer spoke in her favour, an employer cannot be expected to tolerate causing serious affront to work colleagues. It stated that the nurse“s conduct was liable to irreparably damage peace within the workplace. Taking into account all of the circumstances, the Court concluded that it was no longer reasonable to expect the employer to continue the employment relationship, not even until the notice period of dismissal had expired.

Notwithstanding this, whether exceptional notice of dismissal with immediate effect is effective is always a decision that is made on a case-by-case basis. The decisive factor is the weighing up of interests. If more weight ought to be given to the employer“s interest in terminating the employment relationship, it is possible for exceptional notice of dismissal to be effective. That is why notice of dismissal should always be well prepared. Lawyers who are experienced in the field of employment law can advise employers on matters relating to dismissal as well as other legal issues.

https://www.grprainer.com/en/legal-advice/employment-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

Removal and dismissal of a GmbH managing director

Removal and dismissal of a GmbH managing director

Removal and dismissal of a GmbH managing director

If a GmbH, a type of German private limited company, wishes to part company with a manging director, simply dismissing him won“t cut it. The managing director also needs to be removed from his post.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The managing director of a GmbH is not comparable with a „normal“ employee. From a legal perspective, he fulfils a dual function. This dual function also needs to be borne in mind for the purposes of dismissal.

The GmbH managing director represents an executive body of the company and has corresponding rights and duties. He is appointed to and dismissed from his post by the shareholders, or rather the general meeting of the shareholders. The managing director“s appointment can be revoked at any time. By removing him from his post, the managing director“s status as an executive body is brought to an end. However, this alone does not complete the managing director“s disassociation.

This is because the managing director also has an employment relationship. His duties and responsibilities are normally laid out in the management agreement. This agreement needs to be terminated by issuing ordinary or exceptional notice as well for the reciprocal contractual claims to lapse. As in the case of removing a managing director from his post, the shareholders, or rather the general meeting of the shareholders, are entitled to dismiss him.

In the case of exceptional notice of dismissal with immediate effect, there needs to be good cause for notice to be effectively issued. There may be good cause, e.g. if the managing director regularly disregards the shareholders“ instructions, it is possible to prove that he committed criminal conduct, or a serious breach of trust was committed in some other manner. Ultimately, there needs to be good cause rendering it impossible for the company to continue to work together with the managing director until expiry of the notice period for dismissal.

The notice periods for dismissal are generally relatively short, but they can vary. This is particularly true if the managing director is not one of the shareholders. In that case, the statutory notice periods for dismissal need to be observed. Notwithstanding this, notice periods for dismissal can also be agreed to in the management agreement.

To ensure that the parting of ways between the GmbH and the managing director goes smoothly and is in the interests of both parties, important points ought to be regulated in the management agreement. Lawyers who are versed in the field of company law can advise shareholders and managing directors.

https://www.grprainer.com/en/legal-advice/company-law/managing-director.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en