• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

Federal Labor Court on termination without notice and default of acceptance

5. April 2023
in Labour law
Reading Time: 4 mins read
0 0
A A
0
arbeitsrecht
Key Facts
  • Terminations without notice by the employer can have a contradictory effect if continued employment is offered under unchanged conditions.
  • There is an actual presumption that the employment offer is not meant seriously.
  • The plaintiff had been working as a technical manager since August 2018 and earned EUR 5,250 gross per month.
  • The defendant gave notice of termination without notice and offered the plaintiff a new contract with lower remuneration.
  • The Labor Court and the Regional Labor Court dismissed the plaintiff's claim for compensation due to default of acceptance.
  • The appeal to the Federal Labor Court was successful, as the defendant was in default of acceptance.
  • The plaintiff did not have to present any inconsistencies with regard to his application for provisional continued employment, as the dismissals were invalid.

If the employer terminates the employment relationship without notice because it believes that it cannot reasonably be expected to continue the employment relationship, but at the same time offers the employee continued employment under unchanged conditions during the proceedings for protection against unfair dismissal “in order to avoid default of acceptance”, it is behaving inconsistently. In such a case, there is a factual presumption that the offer of employment is not serious. This presumption can be invalidated by the reasons for the termination to the certainty or by corresponding explanations of the employer.

The plaintiff was employed by the defendant as a technical manager since August 16, 2018 and earned 5,250.00 euros gross per month. In a letter dated December 2, 2019, the defendant issued a notice of termination without notice, offering the plaintiff a new employment contract as a software developer in return for a reduction in gross monthly compensation to EUR 3,750.00. Further, the termination letter states, “in the event that you reject the extraordinary termination (i.e. in the event that you assume an undissolved employment relationship) or in the event that we accept the following offer, we expect you to start work on 05.12.2019 no later than 12:00 CET”. The plaintiff rejected the offer of change and also did not show up for work. Thereupon, the defendant terminated the employment relationship again in a letter dated December 14, 2019, namely “extraordinarily as of December 17, 2019, at 12:00 a.m. CET.” It also pointed out that “in the event of rejection of this extraordinary termination” it expected the plaintiff “to start work on 17.12.2019 at 12:00 CET at the latest”. The plaintiff did not comply. In the proceedings for protection against dismissal brought by him, it was legally established that both notices of termination did not terminate the employment relationship of the parties.

After the defendant only paid remuneration of EUR 765.14 gross for the month of December 2019 and the plaintiff was not able to establish a new employment relationship until April 1, 2020, he brought an action for compensation for default in acceptance, demanding payment of the salary agreed in the employment contract less the unemployment benefit received until he started the new employment. He believed that the defendant had been in default of acceptance during the period in dispute due to its invalid notices of termination. He could not be expected to continue working for the defendant under changed or even the original working conditions, if the defendant had seriously offered this at all. The defendant had unjustifiably accused him of multiple misconduct and disparaged his person in extensive explanations in order to justify its termination without notice. For its part, it had claimed that it could not reasonably be expected to continue employing the plaintiff. In contrast, the defendant argued that it was not in default of acceptance because the plaintiff had not continued to work for it during the proceedings to protect against dismissal. The plaintiff himself had assumed that continued employment was reasonable because he had filed an application for provisional continued employment in the proceedings for protection against dismissal.

The labor court dismissed the action. The Land Labour Court rejected the applicant’s appeal. It assumed that the plaintiff was not entitled to compensation for default of acceptance despite the defendant’s invalid notices of termination because he had not accepted the defendant’s offer to continue working for it during the proceedings for protection against unfair dismissal. The plaintiff is therefore not willing to perform within the meaning of the law. § 297 of the German Civil Code (BGB).

The plaintiff’s appeal, which was subsequently allowed by the Fifth Senate of the Federal Labor Court, was successful. The defendant was in default of acceptance due to its invalid notices of termination without notice, without the need for an offer of employment by the plaintiff. Because the defendant itself assumed that it could not be expected to continue employing the plaintiff, its contradictory conduct gives rise to a factual presumption that it did not make the plaintiff a serious offer of employment in the proceedings. The deviating assessment by the Regional Labor Court is based on only selective consideration of the parties’ submissions and is therefore not justifiable. Furthermore, the rejection of such an “offer” does not indicate a lack of will to perform on the part of the plaintiff within the meaning of the German Civil Code. § 297 of the German Civil Code (BGB). The only possibility would be that he would have to accept credit for maliciously omitted earnings in accordance with § 11 No. 2 KSchG. In the case in dispute, however, this was not possible because the plaintiff could not reasonably be expected to be employed by the defendant in court due to the accusations made against him in the context of the dismissals and the disparagement of his person. This is not precluded by the fact that the plaintiff applied for provisional continued employment in the unfair dismissal proceedings. This application was directed at the process employment after the invalidity of the terminations had been established. Only if the plaintiff had refused further employment in such a case would he have acted inconsistently on his part. Here, however, it was a question of continued employment in the period up to the first-instance decision. It makes a difference whether the employee is to continue working despite the (serious) accusations made against him in the context of a termination for reasons of conduct or whether he can return to work “rehabilitated”, as it were, after winning the first instance in the proceedings for protection against dismissal.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: Employment relationshipFederal Labor CourtKündigungLabor CourtLawsuitTestWorkers

Weitere spannende Blogposts

Claim for damages for online city map copyright infringement

ECJ: Advocate General assesses sampling as copyright infringement
23. April 2019

In fact, I could have swear that the subject of warnings and injunctions for the illegal use of city maps...

Read moreDetails

LG Koblenz: Inadmissible demand for confirmation of termination by telephone

LG Koblenz: Inadmissible demand for confirmation of termination by telephone
21. March 2024

Insight into the decision of the Koblenz Regional Court In its judgment of 27.02.2024 (Ref.: 11 O 12/23), the Regional...

Read moreDetails

Meta must pay 20 million euros in arrears to Telekom

Meta must pay 20 million euros in arrears to Telekom
31. May 2024

Background to the legal dispute Proceedings 33 O 178/23 before the Regional Court of Cologne concerned a claim by a...

Read moreDetails

Is an artist’s name sufficient in the imprint?

Imprint and social media: A few stumbling blocks
5. April 2019

Basically, there are clear rules in Germany about what belongs in an imprint. For Twitch I have written something about...

Read moreDetails

Calling someone a “stupid piece of brain vacuum” on Facebook is unlawful abusive criticism

Calling someone a “stupid piece of brain vacuum” on Facebook is unlawful abusive criticism
4. December 2023

What is it all about? The 4th Civil Senate of the Higher Regional Court of Stuttgart has ordered the author...

Read moreDetails

Extraordinary termination options for influencer contracts

1. October 2024

In my practice as a lawyer for IT and media law, I encounter the challenges of the digital age on...

Read moreDetails

No tax exemption according to § 11 para. 1 Sentence 2 InvStG for foreign investment funds

Risk Social Security / Tax audit for streamers, esports enthusiasts, etc.
7. November 2022

The tax exemption provision of Section 11 para. 1 sentence 2 InvStG old version is compatible with the free movement...

Read moreDetails

I wish you a happy year 2020

I wish you a happy year 2020
30. December 2019

I wish all readers of the blog and all clients a happy New Year 2020. Especially in the field of...

Read moreDetails

Stumbling blocks you should be aware of when reading a contract

Stumbling blocks you should be aware of when reading a contract
4. January 2023

Why is it important to read and understand contracts? Contracts are an essential part of everyday life. They help us...

Read moreDetails
Kryptowert

Kryptowert

30. June 2023

Einleitung Kryptowerte, oft auch als Kryptowährungen bezeichnet, haben in den letzten Jahren erheblich an Popularität gewonnen. Sie werden oft als...

Read moreDetails
Lego-Baustein weiterhin als Geschmacksmuster geschützt

EuGH

25. June 2023
Legal drafting of API usage agreements: Key issues for tech companies

Doppel-Optin Verfahren

15. October 2024
Kritische Infrastrukturen (KRITIS)

Kritische Infrastrukturen (KRITIS)

15. October 2024
ESOP Vereinbarung

ESOP Vereinbarung

26. June 2023

Podcast Folgen

da884f9e2769f2f96d6b74255be62c27

The role of the IT lawyer

5. September 2024

In this exciting podcast episode, we delve into the fascinating world of IT start-ups and find out why an experienced...

c9c5d7fd380061a8018074c2ca5a81bf

Startups and innovation in Germany – challenges and opportunities

26. September 2024

This insightful podcast episode takes an in-depth look at the startup and innovation landscape in Germany and Europe. The discussion...

43a60cb39d7ea477ac8f3845c1b7739c

Legal advice for start-ups – investments that pay off

8. December 2024

This episode of the ITmedialaw.com podcast is all about the importance of legal advice for startups. Host Marian Härtel talks...

092def0649c76ad70f0883df970929cb

Influencers and gaming: legal challenges in the digital entertainment world

26. September 2024

In this captivating episode, lawyer Marian Härtel takes listeners on an exciting journey through the dynamic world of influencers and...

  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung