In almost every dismissal protection process, a (provisional) application for continued employment is also the subject of the court decision. The employer is then sentenced to continue to employ the employee as a salesperson, for example, until the dismissal protection procedure has been legally concluded.
1. LEGAL BASIS (ESPECIALLY FORCED ENFORCEMENT)
Employees have from the employment contract in conjunction with §§ 611a, 613, 242 BGB, Art 1, 2 GG a right to contractual employment. In the event of a legal dispute about the effectiveness of the termination, a limbo occurs after the expiry of the notice period (immediately in the case of extraordinary termination without notice). In this limbo, the interests of the employer (employee should not return to the company) and the interests of the employee (employee wants to return to the company) are opposed. These interests must be weighed against each other when determining whether there is a right to continued employment.
Judgments of the labor courts are in accordance § 62 Para. 1 ArbGG generally provisionally enforceable. There is therefore no need for a separate order in the tenor of the judgment (cf. § 704 ZPO). Exception: Provisional enforceability is excluded in the judgment. Continuing employment represents an unreasonable act because it cannot be carried out by a third party and depends exclusively on the will of the debtor. This means that the only means of enforcing compulsory enforcement is a penalty payment § 888 ZPO prevail.
2. RESPONSE AND DEFENSE OPTIONS OF THE EMPLOYER
The employer can of course initially “accept” the continued employment and continue to employ the employee. He can also pay the penalty payment and not employ the employee.
In addition to these two options, the employer can also defend itself using legal means:
After the end of the oral hearing he can Section 62 Paragraph 1 Sentence 3 ArbGG apply to stop the compulsory enforcement of the provisionally enforceable first instance judgment, if one of the cases of §§ 707 paragraph 1, 719 ZPO is present. However, this requires that the employer can credibly demonstrate an irreparable disadvantage that would arise as a result of the employee's employment.
The employer also has the option - even during the appeal process - to submit a request for dissolution Section 9 Paragraph 1 Sentence 2 KSchG and submit this with the employment application Section 62 Paragraph 1 Sentence 3 ArbGG to combine. This has the advantage that an application made in a permissible manner results in the balance of interests in the context of enforcement shifting significantly in favor of the employer.
There is also the possibility of issuing a further termination after the first instance has been completed. This can create additional uncertainty regarding the continuation of the employment relationship, which must also be taken into account when balancing interests. However, this only applies to terminations that are based on new circumstances and are not obviously ineffective.
The last resort is to withdraw the appeal. Because the provisionally enforceable application for continued employment is only effective until the proceedings are legally concluded, the withdrawal of the appeal deprives it of its basis.
3. CONCLUSION
In practice, successfully “defending” claims for continued employment can be a challenge for employers. However, with a well-thought-out approach, it is definitely worth considering. The effort can be worthwhile, especially if the affected employee is not expected to return to work under any circumstances.
