Abstract:
The dissertation deals with the effects of two revisions of law in force since 2004 on the labour-court proceedings in the matter of the protection of acquired rights: Since 01 January 2004, in the case of a written notice of termination, the revised norm of the § 4 of the KSchG requires from employees to file labour-court suit for determination of this notice’s invalidity within three weeks of its receipt, with the limitation of this period of time to the inoperativeness of the lacking social justification within the meaning of § 1 KSchG being abandoned by the legislator. So if an employee fails to observe the period for filing suit, the notice of termination is deemed to be effective according to § 7 KSchG. Also, a new law of costs has been in place since 01 July 2004 for labour-law proceedings. The court cost rates applicable until the 30 June 2004 were clearly increased, and quite a number of fee-privilege founding conditions known from the former law of cost were discarded. The paper’s objective is to analyse the effects of the legal reforms on the protection of acquired rights proceedings in labour courts. It is subdivided in 4 parts: (A to D): The first part (A) provides an introduction to the topic and a historic view of the development of the period for filing suit. The second part (B) deals with the purpose of the norm and the range of application of § 4 of the KSchG, with the modification of the ruling contents of the reformed version of the norm being presented first. Subsequently, the limits of the range of validity of § 4 of the KSchG will be evaluated. Considering that, according to the wording of the norm, the period starts to run only with the receipt of the written declaration of termination, the consequences of a “non-written” or “socially unfair” notice of termination will be considered. Moreover, this chapter covers the application of validity of § 4 of the KSchG to indefinite and conditional declarations of notice of termination, incorrectly calculated periods of notice, the issues complex surrounding the lacking attributability of the declaration of notice of termination as reason for inoperativeness, and the potentially conflicting relationship between § 4 S. 1 and S. 4 KSchG in context with the inoperativeness of a notice of termination for lacking official approval. The chapter concludes with a view of the requirements of the timely proper filing of suit in the case of a lacking or delayed notification of mass dismissal according to §§ 17, 18 KSchG, the inoperativeness of a notice of termination for reason of violations against the AAG (“Gesetz über den Ausgleich der Arbeitgeberaufwendungen für Entgeltfortzahlung / Aufwendungsausgleichsgesetz” = law on the compensation of the employer’s expenditure for continued pay), and the issues involved with the unawareness of the reasons of notice of termination through no fault of one's own. Finally, the focus is on the question to know whether the new version of the norm should also be applied to the exclusion procedure in the case of notice of termination concerning vocational training. The third part of the paper (C) covers the procedural effects of the legal amendment. The wording of the § 4 of the KSchG provides for filing affirmative action in the form of an “isolated ” petition. An analysis of a judgement of the Federal Labour Court dated - 2 AZR 426/04 - is used as a basis to demonstrate that no room is left for a retroactive extension of the matter at litigation in protection of acquired rights proceedings involving a combination of petitions filed according to §§ 4 KSchG, 256 ZPO (“Zivilprozessordnung” = German Code of Civil Procedure) if a timely downstream notice of termination is not attacked in due time within the meaning of § 4 of the KSchG. The fourth part of the paper (D) deals with the effects of the amendment of the law of costs on employment protection proceedings. Following an overview of the general cost regulations laid down in the GKG (“Gerichtskostengesetz” = law on court costs) and the systematic approach of the court fees, the decision made by Labour Courts as to the costs and the value of the matter at litigation will be illustrated. Within the framework of the description of the fee-law particularities of the Labour Court proceedings, the analysis involves a variety of problematic issues in context with the occurrence of facts leading to fee exemption or circumstances involving privileges. The paper will conclude with 20 theses to provide a summary of the results found.