NATIONAL LABOUR MARKET POLICIES
Basic Information Reports
2.2.1.3.Workplace Labour Relations Act (Arbeitsverfassungsgesetz - ArbVG)
In addition to regulating collective elaboration of laws and codetermination in enterprises (cf. 3.3), the ArbVG also governs protection against termination and dismissal.
General protection against termination and dismissal:
General protection applies to all employees who have served at least six months in an enterprise with a staff of no less than five.
Employers must inform the works council prior to terminating an employment contract. The works council is entitled to request consultation with the employer within five days and to state its position.
The works council may either agree to the proposed termination, make no statement of its position or file an objection. If it either makes no statement or objects, the termination may be contested in court, either by the works council or by the employee concerned.
A challenge to the termination is admissible under the following circumstances:
- the employer has given the employee notice to quit on unfair grounds (in this case the agreement of the works council to a proposed termination does not impede its contestation), or
- the termination is unjustified on social grounds and has not been expressly agreed to by the works council.
If the competent court rules in favour of the challenge, the termination is retroactively annulled. The employment relationship is henceforth considered free of any notice to quit and proceeds without interruption.
General protection against dismissal:
The employer is obliged to immediately report every dismissal to the works council and on request to discuss it with the council within a period of three working days.
If the works council has not expressly approved the dismissal, an action to contest it can be brought before court, provided that there are justifying grounds to challenge the dismissal and the employee has not provided cause for discharge.
If the court rules in favour of the challenge, the dismissal is annulled and the employment relationship is resumed.
Special protection against termination and dismissal:
Under the terms of the regulations concerning special protection against termination and dismissal, certain categories of employees enjoy greater job security. For employees' representatives in enterprises, employees participating in training, pregnant women, parents on leave, disabled employees and employees temporarily in the public service (persons in military or alternative military service) a dismissal is only considered valid before court in the event of particularly grievous cause.
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