Termination in short-time work
Can the employer dismiss me during short-time work?
Many companies have currently ordered short-time working. The principle of short-time work is to bridge the temporary loss of work without the dismissal of employees. Nevertheless, there are increasing cases in which the employer has ordered short-time work for an employee, but then dismisses the employee during short-time work. Many employees are right to ask themselves: Can the employer give notice to me during short-time work?
In principle, the employer may also give notice during short-time work. However, the requirements for the effectiveness of this termination, provided that it is the normal case of an operational termination, are significantly increased. Employees should therefore have a dismissal, which they receive during short-time work, be checked by a lawyer or specialist lawyer specializing in labor law. It is important that the employee acts quickly, because if no cancellation is made within 3 weeks of receipt of the cancellation, the cancellation is considered effective - even if the cancellation in itself would be ineffective.
During short-time work, dismissal for operational reasons is socially detrimental and therefore ineffective if the dismissal is based on the same reasons that led to short-time work. In this case, there is usually no such thing as a termination for operational reasons. Section 1 (2) sentence 1 KSchG necessary "urgent“Operational requirement. In addition, an operational dismissal requires a permanent loss of work. However, this is lacking with short-time work, because this presupposes that the loss of work is only temporary. The Federal Labor Court ruled on 23.02.2012 (2 AZR 548/10):
“If short-time work is done, this suggests that the operating parties only assume a temporary lack of work and not a permanent decrease in employment requirements. A temporary lack of work, in turn, cannot justify a job-related dismissal. "
That means: Does the corona pandemic and the associated closings or similar occur? If the amount of work ceases to exist and the employer responds to this with short-time work, this indicates that the employer is only assuming a temporary absence. Unless the situation has changed massively since short-time working was ordered, the employer can then generally not terminate the contract due to operational reasons. Such termination during short-time work would be ineffective.
The prerequisite for this is that protection against dismissal applies to the employee concerned. In simple terms, protection against dismissal applies to an employee if the employee has already been employed by the employer for 6 months and the company has at least 10 employees in total.