Saturday, June 13, 2015

When the company wants you go out

When the company wants you go out
Extraordinary Termination during the probationary period? The probationary period is the mutual acquaintance: Employers naturally want to find out whether the candidate of the resulting work has grown and fit into the team. The employees, in turn, wants to know if he feels comfortable and like in the professional field his activities.

Extraordinary Termination probation
Extraordinary Termination during the probationary period? In disagreements, the employment relationship can be terminated relatively quickly within two weeks' notice in accordance with § 622 III BGB (German Civil Code). But an employer can because this already short time terminate without notice at all?

Unsuccessful probation
Shortly after its setting, a worker fell in the company to negative. Although he had already been pointed out in the interview on his documentation requirements, he did not get this or just every now and then. Despite repeated evidence of his behavior but employees did not change, so that his boss, the employment relationship extraordinarily still within the six-month trial period, the alternative properly announced. As grounds for dismissal he called regular violations of documentation requirements and a lack of suitability for the job.

Ultimately, the parties argued in court to determine the effectiveness of the extraordinary termination. The staff claimed to have taken care of most conscientiously to the people entrusted to him, which is why there is not enough time remained for a documentary to the desired extent. He also had not been raised before notice of dismissal on alleged lack of work benefits. Rather, he had been sent to various training enough in its activities, and therefore they have also done properly.

Ordinary termination as less restrictive means?
The LAG (Landesarbeitsgericht) Berlin-Brandenburg held the extraordinary termination invalid. Pursuant to § 626 I BGB, an employer may only terminate extraordinarily if he has a valid reason for this, and his continued employment is no longer reasonable, at least until the expiry of the notice period.

In the present case was already doubtful, the Court considers whether the failure documentation was such as to justify the dismissal. The employee had his work finally unaware denied, but indicated that they have because of the customer service often had no more time for documentation.

The Court also could not rule out the fact that the employee was simply overwhelmed by his work. Because he was still in the trial period, the boss would therefore respond quickly and 622 III BGB can separate by ordinary termination by him in accordance with § within two weeks.

Although an extraordinary notice includes the short notice during the probationary period of not automatic. However, the shorter the ordinary notice period would be, the more unreasonable must for the employer to continue the employment relationship during this time, however, being. This is mainly used for a particularly serious breach of duty -. For example, theft of company property - into consideration.

In the present case the reasons for dismissal were, according to the employer, but "only" an inadequacy and violation of documentation requirements, which is why the head of a proper notice, thus waiting for a two-week notice period was reasonable as a less restrictive measure.

Although the Consumer Protection Act (Employment Protection Act) was present not apply - the employee had his job eventually lost on probation again and therefore does not meet the prerequisite in § 1 KSchG six-month waiting period - so the boss would have the Court considers that, for reasons of proportionality, while the probationary period still need to issue a warning: It is finally assumed that a abgemahnter workers will change their behavior in the future, to the threat of the repetition case dismissal - the toughest sanctions in labor - to prevent.

A warning, however, is not necessary if it is established that the employees will be in spite of warnings not change his behavior or his breach of duty was so severe that the boss is unreasonable waiting for a notice. For this, but nothing was seen in the present case, according to the LAG.

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