There is a recent decision from the BAG (Federal Labour Court) (BAG, 1 September, 2010, 5 AZR 700/09) that I like to share with you.

It deals with the question of how you have to respond if the employer terminates the contract under a wrong notice period.

The plaintiff had been an employee with the employer for more than 10 years at the time when the employer sent him the termination notice. The notice letter dated April 22, 2008 and stated the end of the contract to be July 31, 2008. The employee did not challenge the notice in court. Rather, in November 2008, he went to court for a different reason: He demanded his pay for the months of August and September 2008 contending that his employer had been in arrears with the payment because the actual legal notice period amounted to five months.

Addressing the question which is of relevance here, the Court rejected the claim. The plaintiff was required to have gone to court and raise the issue of the wrong notice period within the mandatory three weeks (§ 4 KSchG) of having received the notice.

http://www.gesetze-im-internet.de/kschg/__4.html.

Since he did not do so, the contract was dissolved at the date as stated in the employer’s notice. The wording of the notice was unequivocal with July 31st having been explicitly mentioned. Thus the court was prevented from constructing the termination as meaning end of September as the proper finishing line of the contract with regard to the correct notice period after (more) than 10 years of employment (§ 622 II No. 4 BG.

http://www.gesetze-im-internet.de/bgb/__622.html

This decision highlights the exclusionary nature of the three weeks in which the employee has to challenge the written termination notice. The employer would have been in arrears, if the contract had not been properly terminated. The employee would have then received his salary even though he had not appeared at work. The omission of challenging the wrong termination period in court, however, excluded him from pursuing those claims. The flawed termination notice was legally deemed valid coming into effect at its stated date.

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