Tag Archives: Lawyers

Politics Law Society

Competition law: Goods on display must feature total price on label

Competition law: Goods on display must feature total price on label

Competition law: Goods on display must feature total price on label

The final cost of goods on display needs to be readily apparent to customers. According to a recent ruling of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm], quoting only part of the price constitutes a violation of competition law.

The instant case before the Oberlandesgericht Hamm concerned an exhibition piece at a furniture store. The store had furnished a set of couches with a price tag featuring a notice stating that accessories were available for delivery in return for payment of an extra charge. The exhibited items pertaining to the set were listed on the back of the price tag with unit prices. This resulted in a substantial increase in the price of the furniture on display.

An association dedicated to combatting unfair competition took legal action against this, arguing that this price labelling was in breach of competition law. It demanded that the exhibitor refrain from labelling the goods on display with prices that do not match the final cost.

The action was successful. In its ruling of March 21, 2017, the OLG Hamm held that the price labelling in question contravened competition law and violated the so-called „Preisangabenverordnung“ [Price Quotation Ordinance] (Az.: 4 U 166/16). The Court ruled that pursuant to the Ordinance the vendor had been obligated to quote total price of the exhibition piece, as the furniture store had made a variant offer in its exhibition rooms concerning the fittings, which appeared to consumers to represent a uniform portfolio of services. The notice stating that accessories were available for delivery in return for payment of an extra charge was said not to change this fact. On the contrary, this notice could be understood by consumers to mean that further accessories above and beyond those featured in the variant offer were available for delivery.

The Court went on to say that the furniture store had been obliged to quote the final cost of the piece of furniture on display, concluding that it was not enough to refer to additional sums on the back of the price tag and thus leave the customer having to calculate the final cost for himself.

We at GRP Rainer Rechtsanwälte wish to point out that pursuant to the Preisangabenverordnung a vendor of goods or services is obligated in price quotations directed at consumers to include VAT plus any additional price components in the total price. In other words, the customer needs to be able to immediately identify how much purchasing the goods would cost him.

Violations of competition law may be met with sanctions, including formal written warnings, injunction suits or claims for damages. Lawyers who are versed in the field of competition law can fend off or enforce claims arising from a violation 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

Terminating employment relationship and prior formal warnings

Terminating employment relationship and prior formal warnings

Terminating employment relationship and prior formal warnings

Formal written warnings play an important role in the field of employment law, with one often being a prerequisite to the employer effectively terminating an employment relationship.

Generally speaking, a prior formal warning is necessary if the reason cited for terminating the employment relationship relates to the conduct of the employee in question, i.e. in cases of dismissal on grounds of conduct. Notwithstanding this, a formal written warning needs to meet certain criteria if it is to be judged a formal warning from a legal perspective. Merely reprimanding the employee is not sufficient for this purpose.

A formal warning needs to explicitly refer to the employee“s misconduct. Generalized statements that the employee is in breach of his obligations as laid out in the employment contract are not enough; the conduct that is the subject of the formal warning needs to be described in detail. If, for instance, the employee frequently turned up to work late, the employer must be able to reference this misconduct including the relevant dates and times. The employer must also clearly admonish the employee“s conduct as a violation of the employment contract as well as make it clear that this behaviour will not continue to be tolerated and that dismissal is possible if the employee fails to change his behaviour going forward. The formal warning must therefore serve as notice of the misconduct and at the same time as a warning to the employee of the potential consequences under employment law.

Furthermore, employers ought to realize that waiving the option of issuing a formal written warning in relation to misconduct may be interpreted as tacit consent to this behaviour and thus as an amendment to the employment contract.

A formal warning is supposed to give the employee the opportunity to change his behaviour and not put the employment relationship at risk. That being said, the employer“s patience need not be endless, it not being compelled to issue repeated formal warnings before finally issuing notice of dismissal on grounds of conduct. It ought to be noted, however, that the reason cited for dismissal needs to match that cited in the formal warning. Otherwise, the formal warning is not relevant.

In cases involving compulsory redundancy or dismissal on grounds of personal capability, a prior formal warning is typically not necessary due to the fact that there is no misconduct on the part of the employee here.

Lawyers of the law firm GRP Rainer LLP, who are experienced in the field of employment law can advise employers on matters pertaining to formal warnings, dismissal as well as in relation to 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

Purchase of further tax CDs possible – Voluntary disclosure for tax evasion

Purchase of further tax CDs possible – Voluntary disclosure for tax evasion

Purchase of further tax CDs possible - Voluntary disclosure for tax evasion

Since 2010, the German exchequer has reeled in a nationwide total of around six billion euros by way of voluntary declarations for tax evasion. For tax dodgers, voluntary disclosure remains the only way out.

While the number of voluntary declarations has gone done noticeably in recent months, this should in no way give tax evaders a false sense of security. The cross-border fight against tax evasion continues. In the period since suspicions were raised concerning the possibility of a Swiss agent having spied on German tax investigators, North Rhine-Westphalia“s Finance Minister, Norbert Walter-Borjans, has disclosed to the newspaper Rheinische Post that the regional government will not be intimidated and that it was not ruling out purchasing more CDs containing information on tax evaders as part of the fight against tax evasion.

In light of the automatic exchange of financial information, tax dodgers should also be worried about their illicit earnings in foreign accounts being detected by the tax authorities. As a consequence, the risk of tax evasion being uncovered followed by the threat of severe penalties continues to go up. The only means of returning to a state of tax compliance is voluntary disclosure leading to immunity. However, this is only possible if the tax evasion has not yet been discovered. In addition to being submitted on time, the voluntary declaration also needs to be both complete and error free for it to be capable of succeeding.

For this reason, it is almost impossible for a layperson to submit an effective voluntary declaration without expert assistance. For those who nevertheless attempt to do so on their own or with the help of standard templates, they are running the risk of the voluntary declaration failing. The complex processes involved simply cannot be accounted for in this way. A voluntary declaration must always be tailored to the specific circumstances. Even minor errors can result in the voluntary declaration failing, with the prospect of a conviction for tax evasion then still on the horizon. In this case, voluntary disclosure can only have a mitigating effect on sentencing.

To prevent this from happening, lawyers and tax advisors who are experienced in the field of tax law can be consulted. GRP Rainer Rechtsanwälte takes the view that each case of tax evasion is unique and it is therefore necessary for the voluntary declaration to take into account the respective circumstances. There is no such thing as a ready-made voluntary declaration. It needs to be tailored to the specific circumstances of a given case. Only then can it succeed and lead to immunity.

https://www.grprainer.com/en/legal-advice/tax-law/voluntary-disclosure.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

Reform of law governing challenges to debtor“s transactions in insolvency proceedings

Reform of law governing challenges to debtor“s transactions in insolvency proceedings

Reform of law governing challenges to debtor"s transactions in insolvency proceedings

The reform of insolvency law is meant to bolster the rights of creditors in the event that a business partner becomes insolvent as well as provide greater legal certainty.

Insolvency law foresees the possibility for the insolvency administrator to recover payments made by the insolvent debtor prior to becoming insolvent. This has resulted in payees being faced with legal uncertainty and sometimes disproportionate burdens. The reform of the law governing challenges to debtor“s transactions in insolvency proceedings is supposed to strengthen the position of creditors and ensure greater legal certainty.

The case law of the Bundesgerichtshof, Germany“s Federal Supreme Court, had also contributed to the uncertainty among many creditors that had received payments prior to one of their business partners becoming insolvent. In some cases, these creditors had to reckon with the insolvency administrator reclaiming the payments if, for instance, they had allowed the debtor to make payments in instalments. This was viewed as an indication that they were aware of their business partner“s imminent insolvency and nonetheless accepted money, which the insolvency administrator then reclaimed.

The reform to this aspect of insolvency law is meant to afford greater protection to creditors. The presumption that creditors were aware of the impending insolvency when granting payment relief has now been reversed, i.e. it is assumed that the creditor was not aware of this. This presumption must then be rebutted by the insolvency administrator. Thus, challenges to debtor“s transactions brought by the insolvency administrator will only be possible if the creditor knew that the debtor was definitely insolvent.

In addition, the period for filing such a challenge has been reduced. If a creditor has received security or satisfaction, the period for bringing a challenge will now no longer extend to ten years but instead only four.

Furthermore, the legislature has tightened the requirements in relation to challenges to wilfully disadvantageous cash transactions. These challenges will now only be possible if the creditor was aware that the debtor acted unfairly or dishonestly. Moreover, interest will only begin to accrue if the party opposing the challenge is in default of payment and not as early as the opening of insolvency proceedings.

The reform of insolvency law does not completely do away with legal uncertainty. Lawyers who are experienced in the field of company law can advise both debtors and creditors in the event of insolvency.

https://www.grprainer.com/en/legal-advice/company-law/restructuring-insolvency.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

GRP Rainer Rechtsanwälte – Assessing trademark violations

GRP Rainer Rechtsanwälte – Assessing trademark violations

GRP Rainer Rechtsanwälte - Assessing trademark violations

Protecting your brand is crucial. One ought to take resolute action against trademark violations. That being said, you should first assess whether a trademark violation has in fact occurred.

Trademarks result in greater brand recognition among consumers and are accordingly of great significance to businesses. It is therefore all the more important to seek protection for one“s own brand and take a rigorous approach to trademark violations. Having said that, it is also important to exercise caution. First of all, a thorough assessment should always be conducted looking at whether a trademark violation has in fact occurred, otherwise a formal warning or similar measures may backfire. The law firm GRP Rainer Rechtsanwälte can evaluate whether a brand or mark is capable of being registered, whether a trademark violation has occurred and take appropriate legal measures.

In the case of a supposed trademark violation, an in-depth factual and legal investigation needs to be carried out first, i.e. before a formal warning is issued, for instance. In the absence of this kind of thorough investigation, a formal warning may be negligent and thus also result in culpability. This, in turn, can give rise to claims for damages brought by the company that was wrongfully admonished, for example in relation to any costs incurred or restrictions on competition.

To avoid these kinds of unnecessary legal disputes, the first step is to assess the areas and regions in relation to which a brand should be registered and protected. Marks that are capable of distinguishing one“s goods or services from those of competitors can be registered. The next thing that needs to be determined is whether a mark“s protection should apply domestically, within the EU or beyond. At the same time, it is also important when registering a trademark to ensure that this will not infringe existing third-party trademark rights.

Following an assessment into whether a trademark violation has in fact occurred, if the protected trademark has been violated then appropriate legal measures can be taken. These can be in the form of formal written warnings, injunction suits or damages claims.

Lawyers who are experienced in the field of intellectual property law are your qualified point of contact when it comes to protecting one“s brand and asserting claims in response to trademark violations or, conversely, fending off unjustified claims.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-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 Köln: Heir must be defined with sufficient clarity in will

OLG Köln: Heir must be defined with sufficient clarity in will

OLG Köln: Heir must be defined with sufficient clarity in will

Testators need to define their heirs with sufficient clarity in wills, because the will might otherwise be invalid. That was the verdict of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] in its ruling of November 14, 2016 (Az.: 2 Wx 536/16).

By drafting a will, the testator is able to circumvent the rules of intestate succession and personally appoint his heir. While it is not absolutely necessary for the heir to be designated by name, it must at least be possible to reliably identify him. Accordingly, the wording of the will ought to be unambiguous. As demonstrated by the ruling of the Oberlandesgericht Köln, the will might otherwise be invalid.

In the instant case, a married couple had drafted a joint will. This stated that the person who accompanied and cared for the last of the spouses to pass away would become the sole heir („derjenige, der den zuletzt verstorbenen Ehegatten begleitet und gepflegt hat, der Alleinerbe sein soll“). The husband was the first to pass away, and following his death it was his brother who took care of the widowed wife. He organized, among other things, his brother“s burial, dealt with official correspondence as well as the tax declaration. Moreover, he provided his sister-in-law with psychological support and managed her medical care. He therefore applied for the certificate of inheritance. However, the brother of the since deceased wife resisted this, claiming that the will was not sufficiently precise and that he had cared for his sister and visited her regularly. He went on to say that the brother-in-law had not performed any care or nursing services.

The OLG Köln held that the testatrix“s brother-in-law had not become the heir, ruling that the will was not sufficiently precise and unambiguous and did not clearly designate an heir. The Court stated that a testator needs to have made up his mind regarding the content of all of the key components of his final will. This includes, in particular, the designation of the beneficiary. The Court went on to say that while it is not necessary for this person to be designated by name, it must be possible to reliably identify the beneficiary based on the content of the testamentary disposition having regard, as the case may be, to circumstances beyond the deed in question. According to the OLG, said person needs to be defined in such a way that any form of arbitrariness on the part of third parties is excluded. It noted that this was not the case here, concluding that the wording gave no indication as to the nature or scale of any care.

Lawyers who are experienced in the field of succession law can advise on all matters pertaining to wills or contracts of inheritance.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.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

GRP Rainer Rechtsanwälte – Experience in asserting exceptional notice of dismissal

GRP Rainer Rechtsanwälte – Experience in asserting exceptional notice of dismissal

GRP Rainer Rechtsanwälte - Experience in asserting exceptional notice of dismissal

Exceptional notice of dismissal needs to be thoroughly prepared. The law firm GRP Rainer Rechtsanwälte has the necessary experience when it comes to asserting exceptional notice of dismissal.

Unlike in the case of ordinary notice of dismissal, there are no notice periods that need to be observed when issuing exceptional notice terminating an employment relationship. This can be done without notice. That being said, exceptional notice of dismissal with immediate effect is only possible if there is good cause justifying this. Labour courts frequently have to rule on whether exceptional notice of dismissal has been issued effectively. In doing so, the courts balance the employer“s interest in bringing the employment relationship to an immediate end and the employee“s interest in continuing said relationship, at least until the next possible termination date pursuant to the ordinary notice period. Exceptional notice of dismissal is only effective if the employer“s interest outweighs that of the employee. Thus, this is ultimately always a decision that is made on a case-by-case basis.

For this reason, it is all the more important for employers to be able to properly justify their decision to issue exceptional notice of dismissal. GRP Rainer Rechtsanwälte has a great deal of experience in the field of employment law and can assess whether dismissal with immediate effect makes sense or whether milder measures ought to be taken beforehand.

Good cause is a prerequisite for exceptional notice of dismissal. This normally relates to serious breaches of duty on the part of the employee. This kind of breach of duty may have occurred, for instance, if an employee fails to perform his work as agreed in his employment contract, conducts himself in an offensive manner vis-à-vis his superiors and / or colleagues, or in the event of physical altercations. The bottom line is that it must no longer be reasonable to expect the employer to continue the employment relationship any longer without having to observe the ordinary notice period of dismissal.

The courts also review whether the employer could have had recourse to milder means as a way of drawing the employee“s attention to his breaches of duty and encouraging him to change his conduct. The first step that typically comes into consideration in doing so is to issue a formal written warning. If the employee does not react to the formal warning as hoped, it may, depending on the given circumstances, nevertheless be sufficient to issue ordinary notice of dismissal having regard to the relevant notice periods. In the case of exceptional notice of dismissal, the employer needs to demonstrate that it had no other option and that continuing the employment relationship would have been unreasonable.

Lawyers who are experienced in the field of employment law can advise employers when legal disputes arise pertaining to the workplace.

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

Breach of competition law due to lack of labelling on energy consumption

Breach of competition law due to lack of labelling on energy consumption

Breach of competition law due to lack of labelling on energy consumption

Electronic appliances that can be seen on display but lack labelling on energy consumption constitute a violation of competition law. That was the verdict of the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court (Az.: I ZR 213/15).

Consumers have become accustomed to seeing household electronic appliances such as fridges, washing machines and ovens displaying information on energy consumption. The energy efficiency of an appliance can be critical to the decision whether or not to buy it. Accordingly, merchants are obligated to affix an appropriate label concerning energy consumption to exhibited household electronic appliances. In its ruling of December 15, 2016, the Bundesgerichtshof held that the merchants in question are in breach of competition law if this label is missing.

In the instant case, a merchant had displayed various electronic appliances such as fridges, dish washers, washing machines and ovens in its shop. Because the appliances did not feature the required labelling on energy consumption, the merchant received a formal written warning. The BGH subsequently ruled that the lack of labelling constituted a violation of competition law.

The Court stated that energy-related products need to be labelled with information relating to the appliances“ energy consumption. It went on to say that this labelling requirement applies if the appliances are put on display for customers in such a way that the latter can see them, i.e. either unpacked or wrapped in a clear film. If, on the other hand, the appliances are still in cardboard packaging, the BGH held that the labelling requirement does not apply, as the appliances are not immediately visible to consumers due to the packaging“s lack of transparency. In this situation, it was said that the appliances are not exhibited in the manner necessary for the labelling requirement to apply.

The Karlsruhe judges further noted that the labelling requirement for energy-related appliances is supposed to protect consumers, with the labelling informing them about a device“s energy consumption and thus potentially helping consumers to decide whether or not to purchase it. The judges also pointed out, however, that there is no such obligation in relation to labelling on the packaging, stating that an appliance is considered to be on display if there is no obstruction to it being visibly perceived. This was said not to be the case with respect to products in non-transparent packaging.

Violations of competition law can be met with severe penalties. Formal written warnings, injunction suits and claims for damages are all possible consequences. The law firm GRP Rainer Rechtsanwälte boasts a team of lawyers who are versed in the field of competition law and can enforce or fend off claims arising from violations 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

BAG: Reduced notice period during probation only applies if employment contract clearly drafted

BAG: Reduced notice period during probation only applies if employment contract clearly drafted

BAG: Reduced notice period during probation only applies if employment contract clearly drafted

Employers ought to tread carefully when it comes to terminating an employment relationship during the probationary period, as a reduced notice period for dismissal only applies if the employment contract has been clearly drafted.

GRP Rainer Rechtsanwälte explains: If employer and employee conclude an employment contract, they typically also agree to a probationary period. Should this period last no longer than six months, it is then possible for either party to terminate the employment relationship, usually within a period of two weeks. If the employer stipulates a longer notice period in an additional clause within its pre-drafted employment contract, this may also apply to the probationary period if the contract is not clear and unambiguous. That was the verdict of the Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court, in a recent ruling from March 23, 2017 (Az.: 6 AZR 705/15).

In the case in question, the parties had laid out as a blanket rule in the employer“s pre-drafted employment contract that the rights and obligation of the parties would be based on the framework collective agreement. This agreement provided for special notice periods during the probationary period. Moreover, a probationary period of six months was agreed to, while another part of the agreement stipulated an applicable notice period of six weeks leading up to the end of the month. This clause made no reference to the previous provisions. The employer terminated the employment relationship during the probationary period whilst observing a notice period of two weeks. The employee resisted this move, arguing that the employment relationship could only be terminated with a notice period of six weeks.

The BAG followed this line of reasoning, stating that the provisions of the employer“s pre-drafted employment contract were general terms and conditions to be interpreted in such a way as your average, non-legally trained employee would understand them. In this case, the contract was said to have been ambiguously worded. The Court held that due to the reference to the framework collective agreement and the agreement concerning a probationary period, it was not evident from the perspective of the employee that this would influence the notice period. The BAG went on to say that the contract was drafted in such a way that only the provision stipulating a six-week notice period was applicable.

Dismissals are among the most common causes of legal disputes in the workplace. To avoid lengthy legal disputes, employers ought to ensure that agreements are detailed and unambiguous. 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

BAG: Dismissal at request of works council

BAG: Dismissal at request of works council

BAG: Dismissal at request of works council

It is possible for a works council to push through the dismissal of an employee, as demonstrated by a recent ruling of the Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court, from March 28, 2017 (Az.: 2 AZR 551/16).

The BAG held that if the courts grant the works council“s formal request vis-à-vis the employer to dismiss an employee, this fulfils the requirement for there to be an urgent operational need justifying the employee concerned being issued with ordinary notice of dismissal.

The case before the BAG was unusual in that the works council had requested that the employer transfer or dismiss a long-time employee of the company. This was justified with reference to what were apparently huge tensions between the woman in question and her work colleagues. While works councils typically advocate for the concerns and interest of the workforce, it is also possible for them to request that an employee be dismissed. Having said that, this can only happen under certain limited circumstances, such as when an employee seriously disrupts internal peace within the workplace on multiple occasions as a result of illegal conduct or a gross violation of the principles set out in sec. 75 para. 1 of the Betriebsverfassungsgesetz (BetrVG) [Works Constitution Act], especially in relation to racist or xenophobic acts. If the relevant labour court grants the works council“s request to transfer or dismiss the employee, the employer is then bound by this decision. If the employer nonetheless chooses not to follow the decision, it may have a financial penalty imposed against it.

In the instant case, the works council had requested that the employee be transferred or dismissed. The employer did not initially comply with the request. Following a decision-making process initiated by the works council, the competent labour court called on the employer to dismiss the employee. The employer subsequently issued both exceptional notice and, as an alternative, ordinary notice of dismissal.

The woman in question submitted an action for wrongful dismissal. However, she was only successful with respect to the exceptional notice of dismissal, with the Landesarbeitsgericht Düsseldorf (Regional Labour Court of Düsseldorf) ruling that the ordinary notice of dismissal had been issued effectively. The BAG confirmed the decision, stating that pursuant to the Labour Court“s final ruling, according to which the defendant had to dismiss the plaintiff, there had thus been an urgent operational need justifying ordinary notice of dismissal. That being said, the Court went on to say that the decision did not permit the employer to terminate the employment relationship without notice.

A lot of workplace legal disputes arise in relation to dismissals. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to employment law.

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