If the employee wants to claim that a dismissal is legally ineffective, he/she must file an action for protection against dismissal with the labour court within 3 weeks after receipt of the written dismissal.
Action for protection against dismissal
In this case, an application is made for a declaration that the employment relationship is not dissolved by the termination. The action must be filed in writing with the labour court. If the deadline is not met, the action is dismissed as unfounded. However, under certain (strict) conditions, the complaint may be admitted retroactively. This is the case if the employee was prevented from filing the action in time despite exercising the diligence to be expected of him.
The labour court will grant a conciliation hearing after receipt of the complaint. The aim is for the employee and employer to reach an amicable agreement and a settlement at that date. A judgement is only issued if one party fails to appear at the hearing.
If no agreement can be reached, a second hearing is held. The parties prepare with detailed pleadings. In principle, the employer must explain and prove the reasons for termination. Therefore, he naturally writes considerably more than the employee. However, the employee is obliged to assert all grounds for invalidity by the end of the second hearing at the latest. So that the employer and the labor court know for which reasons from his view the notice is to be ineffective.
During the second hearing, the validity of the dismissal is intensively negotiated, and evidence can also be collected. In addition, the court is legally obliged to work towards a settlement in all situations of the proceedings, so that there are almost always further negotiations about a settlement, for example the termination of the employment relationship against payment of a severance payment. If an agreement is not reached, the court usually passes a judgment. A third hearing rarely takes place.
The costs for their legal representative are borne by both parties in the first instance. Court costs are only incurred if no settlement is reached. In the event of a verdict, the court costs are borne by the loser.
Rarely – but this also happens – is the legal dispute not ended with the decision of the labour court. It is possible to appeal to the Regional Labour Court. Here the loser bears the costs for both lawyers and the court costs. It is also conceivable – but this happens very rarely in practice – that the Federal Labour Court will still deal with the case. Here too, the loser bears all costs.