Federal Labour Court, 21.09.2017, Ref.: 2 AZR 57/17
If an employee wishes to assert that a dismissal is socially unjustified or legally invalid for other reasons, they must file an action for protection against dismissal with the competent labour court within three weeks of receiving the written notice of dismissal in accordance with Section 4 sentence 1 KSchG. The action must be aimed at establishing that the employment relationship has not been terminated by the dismissal. If the legal invalidity of a dismissal is not asserted in court in good time, the dismissal is deemed to be legally valid from the outset in accordance with Section 7 KSchG. An action for protection against dismissal that is filed late is generally unfounded and will therefore be dismissed. However, it is questionable whether the deadline in Section 4 KSchG also applies to an employee's own dismissal.
Facts of the Court Case
The parties are in dispute about the validity of the plaintiff's own dismissal and her provisional continued employment. The plaintiff had been employed by the defendant since 1992. In 2013, the plaintiff was hospitalised for paranoid schizophrenia, after which she was able to work again.
Employee had given notice herself
The plaintiff terminated the existing employment relationship in a letter dated 6 March 2015. This was confirmed by the defendant in a letter dated 9 March 2015 and the termination date was set for 30 September 2015.
In March and April 2015, the plaintiff sent further letters of termination. From 23 May 2015, she was again in inpatient treatment, whereupon a guardian was appointed for her.
The employee's legal carer considered her legally incapacitated
The defendant informed the carer of the plaintiff's own termination. The carer then informed the defendant that the plaintiff was not legally competent at the time of the termination, which was confirmed by a medical opinion.
On 7 October 2015, the carer asked the defendant to consider the termination to be without object, as in her opinion it was void in accordance with Section 105 BGB. The defendant rejected this.
Plaintiff filed an action for declaratory judgement that her own termination was invalid
With her action of 10 December 2015, the plaintiff is seeking a declaration that the employment relationship was not terminated by the dismissal of 6 March 2015.
The defendant seeks to have the action dismissed. It is of the opinion that the time limit for bringing an action pursuant to Section 4 sentence 1 KSchG has been missed or that the plaintiff has forfeited her right.
The labour court dismissed the claim. The Regional Labour Court upheld it. With the appeal, the defendant seeks the restoration of the judgement of the court of first instance.
Federal Labor Court judgment:
The appeal is admissible and well-founded. This leads to the appeal judgement being set aside and the case being referred back to the Regional Labour Court (Section 562 (1), Section 563 (1) sentence 1 ZPO). On the grounds given, the Regional Labour Court was not permitted to amend the judgement of the Labour Court dismissing the action. It has not yet been determined whether the plaintiff's dismissal of 6 March 2015 terminated the employment relationship between the parties.
The application for a declaratory judgement is admissible. The application should be interpreted as meaning that the plaintiff is seeking a declaration that the employment relationship between the parties continued beyond 30 September 2015. This is a general action for a declaratory judgement pursuant to Section 256 (1) ZPO.
Although the application had been formulated in accordance with § 4 KSchG, it could not include the employee's own termination of employment.
According to Section 4 sentence 1 KSchG, an employee must file an action within three weeks of receiving written notice of termination if he or she wishes to assert that the termination is socially unjustified or legally invalid for other reasons.
This provision is part of the general protection against dismissal and must be considered with regard to Section 7 KSchG. Accordingly, a dismissal is deemed to be legally effective from the outset if its legal invalidity is not asserted in good time in accordance with § 4 sentence 1, §§ 5 and 6 KSchG.
The purpose of this regulation is to provide the employer with a clear legal situation regarding the validity of the termination as quickly as possible.
However, the time limit for filing an action under Section 4 sentence 1 KSchG can only apply to actions brought by employees. "A timely filing of an action would prevent the fictitious effect pursuant to Section 7 KSchG from materialising. In the opinion of the Court of Appeal, however, this would only not lead to inappropriate results if the action was only intended to assert the invalidity of a dismissal by the employer. However, if the time limit for bringing an action also applied to an employee's own dismissal, the employee would be able to make a materially ineffective dismissal (e.g. a dismissal without notice without good cause) effective by not bringing an action against it himself. However, this would be to the detriment of the employer and could therefore not be justified. An imputation of the employee's own termination could also not be assumed, as neither representation pursuant to Section 164 BGB nor representation without power of attorney pursuant to Section 177 BGB could be assumed. Authorisation was also excluded.
Dismissal Protection Act is not applicable to self-termination
As a result, neither the time limit for filing an action under § 4 sentence 1 KSchG nor the fictitious effect of § 7 KSchG would apply to the plaintiff's own termination.
Furthermore, the plaintiff's claim was not forfeited.
"The right to bring an action may be forfeited, with the consequence that an action that is nevertheless brought is inadmissible. However, this only comes into consideration under special circumstances. By way of exception, the right to bring an action may be forfeited if the claimant only brings the action after a longer period of time has elapsed and, in addition, a legitimate expectation has been created in the defendant that he will no longer be prosecuted. In this case, the requirement of the protection of legitimate expectations must outweigh the interest of the entitled party in the factual examination of the claim asserted by it to such an extent that the opponent can no longer reasonably be expected to accept the claim that was not filed within a reasonable period of time. The assumption of a procedural forfeiture must not make it unreasonably difficult to access the courts in a way that cannot be justified on substantive grounds.
This must be taken into account in connection with the requirements to be placed on the moment of time and circumstance (BAG 20 April 2011 - 4 AZR 368/09 - para. 23 mwN)."
It could not be assumed that there was a forfeiture with regard to the moment of time or circumstance due to the lack of a party defence. In particular, the defendant had not shown that it had not secured evidence or that there were other difficulties with regard to the defence due to the confidence it had developed that the plaintiff would no longer bring an action. Therefore, a procedural forfeiture should be rejected.
Furthermore, the Court of Appeal states that there is also no material forfeiture.
Forfeiture is a special case of the unauthorised exercise of rights and is intended to serve the need for legal clarity. However, the mere passage of time cannot justify the forfeiture of a right (time element), as it is not a question of an early discharge of debt. Rather, it is necessary that special circumstances arise in the conduct of both the entitled party and the obligated party (moment of circumstance) that justify considering the late assertion of the right to be incompatible with good faith (Section 242 BGB) (BAG 22 March 2017 - 5 AZR 424/16 - para. 23; 24 August 2016 - 5 AZR 129/16 - para. 60).
In the present case, the circumstances leading to forfeiture had to be rejected. Although the defendant only found out about the plaintiff's incapacity through the carer on 1 September 2015, the defendant did not state at any time that certain facts would prevent continued employment.
With regard to whether the cancellation was void in view of the possible legal incapacity pursuant to Section 105 BGB, the Court of Appeal referred the action back.
In this regard, it stated that the Regional Labour Court had not made a sufficient assessment of the circumstances. A medical opinion does not constitute a finding and cannot be accepted as established. In particular, since the law does not provide for a "medical certificate of incapacity to work", as there is no regulation pursuant to Section 5 (1) EFZG.
In this respect, it cannot be assumed without judgement that the meaning of the legal concept of legal incapacity was not sufficiently clear to the issuer of the medical opinion. Consequently, the significance of the medical letter could not be clearly categorised.
It was therefore necessary for the Regional Labour Court to reassess the facts of the case. In particular, it is necessary to determine whether the plaintiff was actually legally incapacitated at the time of the dismissal.
In the opinion of the Court of Appeal, the notice of termination would be effective if legal capacity was assumed. In particular, it was not too vague, although it was neither described as a termination with notice nor did it specify a concrete termination date.
"As a declaration of intent requiring receipt, a notice of termination must be defined in such a way that the recipient is clear about the intentions of the person giving notice. The addressee of the notice of termination must be able to recognise at what point in time the employment relationship is to be terminated from the terminating party's perspective. Therefore, it must at least be clear from the declaration or the circumstances whether a termination with or without notice is intended (BAG 20 June 2013 - 6 AZR 805/11 - para. 14, BAGE 145, 249; 23 May 2013 - 2 AZR 54/12 - para. 46, BAGE 145, 184)."
The acceptance of an ordinary termination had been made properly, in particular as it would have been necessary to present further reasons in the case of an extraordinary termination. It was also not apparent that the defendant would not have been able to calculate the termination without any doubt. In particular with regard to the letter of confirmation written by her.
To summarise, it can be said that the time limit for filing a lawsuit under Section 4 sentence 1 KSchG does not apply to an employee's own dismissal. If there is a longer period of time between the notice of termination and the complaint, the employer therefore only has the option of referring to forfeiture, whereby both the time and the circumstances must be present.
Furthermore, the decision of the Regional Labour Court depends on the determination of legal incapacity. Only in the event of legal incapacity would the termination be null and void in accordance with Section 105 of the German Civil Code (BGB) and the claim therefore be upheld.
Source: Federal Labor Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de