Termination to the next admissible date as a precautionary measure

BAG judgment dated 10.4.2014 – 2 AZR 647/13

Even notice of termination to the next admissible date, served purely as a precautionary measure (“alternatively”), is effective if the termination date can be determined by the employee.

The decision by the Federal Labour Court (BAG) was based on the following facts: the employee had been employed as a service technician since July 2000. The contract of employment provided for a period of notice of four weeks to the end of a quarter and also referred to collective wage agreements of the Hesse Retail Trade, under which a period of notice of 5 months to the end of a month was applicable. The statutory notice period as per Section 622 BGB was 4 months to the end of a month. The employer got into economic difficulties in 2007. A proposal was put to the employee that he should start work in another company, H-KG. H-KG worked with the employer as technical customer service. Without termination or written cancellation of his old employment relationship, the employee concluded a contract of employment with H-KG with effect from 1 July 2007; nevertheless, he was handed a reference, his social insurance documents and wage-tax card. On 29 July 2011, the original employment relationship between employer and employee was terminated “as a precautionary measure to the next admissible date”... “although we are of the opinion that the employment relationship was already ended in 2007”. The BAG considered this termination to be effective.

Notice of termination served “as a precautionary measure” or “alternatively” is an admissible legal condition as defined in Section 158 Subsection 2 BGB.

The starting point for the considerations of the BAG is Section 158 Subsection 2 Sentence 1 BGB. If notice of termination is served “as a precautionary measure” or “alternatively”, this is not a condition that would stand in the way of the effectiveness of the termination. The supplement “alternatively” or “as a precautionary measure” merely makes it clear that the employer is primarily invoking other termination circumstances (see also BAG dated 23.5.2014 – 2 AZR 54/12). This is therefore an admissible legal condition subsequent as defined in Section 158 Subsection 2 BGB. The effect ends if it becomes clear that the employment relationship has already been ended at an earlier date.

Since, in this case, the employment relationship with the Defendant had not been ended beforehand in accordance with Section 623 BGB, this legal condition became applicable and this notice of termination constitutes the authoritative termination circumstances.

No indication of an ending date required if this can be determined by the employee.

In the opinion of the BAG, the effectiveness of the termination is likewise not nullified by the fact that the letter of termination did not expressly state an ending date. The BAG affirms its case law, according to which a letter of termination must not necessarily include a specific date, if the employee can determine the period of notice without the need to engage in extensive investigations or answer difficult legal questions. In this context, the BAG considers that the employee can, in particular, also be reasonably expected to obtain information himself/herself on the content of a collective wage agreement, and to ascertain the correct period of notice from several contradictory periods of notice (contract, law, collective wage agreement).

Practical recommendation

If the notice of termination is “follow-up notice of termination” of an employment relationship that has already been terminated or allegedly otherwise ended, the termination should however make it clear that it is precautionary termination of an employment relationship that may still exist, and that the “existing” employment relationship is not being terminated if the notice period for the previous termination has already expired.

Even if it is possible to terminate merely to the next admissible date, we also recommend stating a specific ending date, combined with the supplement that notice of termination is being served to the next admissible date as a precautionary measure.

Summary

Notice of termination can be served as a precautionary measure. This form of termination is also effective if three contradictory notice periods are of relevance, and the employer does not specifically state the ending date.