Employers are nowadays under pressure to cut costs with employees being their first target.

In companies with a certain size, usually more than 10 employees, employers face the restrictions and requirements of the Dismissal Protection law.

To avoid this difficulty and a possible lawsuit where the discharge will have to stand the scrutiny in a court of law, employers often prefer to get the employee to sign a dissolution contract.

The question of whether such a "mutual agreement" should be entered has already been of some discussion here: Generally it is of disadvantage, though depending on the facts of the case, especially with the view to possible sanctions by the Bundesarbeitsagentur when it comes to the pay of unemployment benefits.

What is seldom known is, that at this stage of the (negotiation) process, mistakes can be made that later in court, when the dismissal is scrutinised, eventually allow the employer to get rid of the employee after all, even though, the discharge as such was legally invalid from the beginning.

The law on Dismissal Protection allows for the employer to motion for the dissolution of the employment contract if he can substantiate grounds that show that a successful conducive working relationship between the employer and the employee to the good of the company can longer be expected.

On such a motion the judge can then dissolve the contract in return for an appropriate compensation which he, the judge, is going to fix according to his discretion; mostly half a month´s salary for every year of employment.

It is not seldom that the employer when presenting the employee with the offer to dissolve the contract feels the need to reinforce the "benefits" of such a deal by employing strong arm tactics. It is not a rare incidence either that the employee faced with such a situation, often deserted by the support of other colleagues not wanting to endanger their position, finds his back against the wall and finally makes remarks or comments of an unfavourable sort. In a recent case before the Federal Employment Court the employee argued that the employer tried to force his hand when he was served with the offer to agree to dissolve the contract. The employee accused the employer of blackmailing and later commented negatively on the management. The employer who wanted to get rid of the employee but failed to do so after his discharge was deemed invalid due to legal reasons, motioned for such a court dissolution. The Federal Employment Court found that remarks like that, even though lacking the strength of being a reason of dismissal themselves, could still qualify for being grounds that show that a successful working relationship between the employer and the employee can longer be expected. Typical reasons are personal attacks by the employee against his senior or other fellow employees. The Court pointed out that a balancing of the facts has to take place and as result it has to be established that in future a conducive working relationship can longer be expected. To do so the case was remanded back to lower court.

This case illustrates once again the importance to keep one´s cool when faced with such a situation even at this early stage and not let oneself be provoked to utter any sort of unfavourable remarks with which one could be presented later on.


Rechtsanwalt_Jain@yahoo.de

Hi all,

can anyone help me, I have below text in my termination letter, does this applies to me that my employer asking for mutual agreement for my termination? Do I lose my Arbeitlosgeld, if i go for mutual agreement for contract disolution

wir weisen Sie darauf hin, dass Arbeitnehmer gemäß §§ 37b, 144 SGB iii verpflichtet sind, sich unverzüglich nach Kenntnis des Beendigungszeitpunkts des Arbeitsverhältnisses persönlich bei der Agentur für Arbeit als Arbeit suchend zu melden. Anderenfalls mindert sich das Arbeitlosengeld

No, your employer is not asking for mutual agreement.

He is just telling you that, you need to go personally to Arbeitsamt and get register yourself there.