Dissolution request: this is how you save an invalid notice of termination

German labor law is strict, the dismissal of employees complicated. But if you really want to separate, there is still an alternative – but you have to take money in hand for it.

Terminating an employee who does not perform as required or simply does not fit into the team is not easy. Blame the strict German labor law, because it offers employees the so-called protection against dismissal. This means regular problems mainly for larger dental practices and zMVZs.

If more than 10 people are employed in the practice, the protection against dismissal takes effect and the employees can file an action against the planned dismissal. Experience also teaches that labor court jurisprudence tends to be employee-friendly.

Is the employee allowed to return to work after the dismissal protection action?

However, a dismissal protection action that is likely to be lost does not have to mean that the practice owner must continue to employ the employee in question. §Section 9 of the Dismissal Protection Act allows employers to request termination of the employment relationship with simultaneous payment of an "appropriate severance payment" – and this is always the case "if there are reasons which make further cooperation between the employer and the employee which is beneficial to the company's purposes unlikely".

But what exactly is meant by that? First of all, there is the question of what is a reasonable settlement. The law defines a maximum of up to 18 months' salary, depending on the age of the dismissed employee. It normally marks the maximum risk for the doctor.

When the employer can request the dissolution of the cooperation

In addition, it must be clarified on which grounds the application for dissolution can be based. The Federal Labor Court cites, among other things, deliberately false statements of fact by the employee as a possible reason for termination, as well as insults, other defamatory statements or personal attacks by the employee against the employer, superiors or colleagues.

Similarly, the behavior of the person concerned (such as e.B. permanent lying) in the dismissal protection process justify a dissolution (cf. BAG Az. 2 AZR 73/18).

However, a (culpable) misconduct of the employee is not mandatory to enforce a dissolution. The decisive factor, according to the court, is "whether the objective situation at the end of the hearing (…) justifies the concern that further beneficial cooperation is at risk." Translated into German: The employer may in principle even rely on the same
reasons on which he had previously – albeit unsuccessfully – based the termination. However, the courts generally place high demands on these explanations. It is therefore often useful to also consider a settlement with the terminated employer.

Requirements for a request for termination

By dissolution request an employment relationship can be terminated in the context of a dismissal protection process only if the dismissal has failed because it was not socially justified. If the court has overturned the ejection for other reasons – for example, because the works council was not consulted in an MVZ – this option is no longer available.

Doctors should also bear in mind that they can only file a motion for dissolution if they fail with an ordinary notice of termination. In the case of extraordinary termination, this option is only open to the employee.