Cancellation agreement: content, challenge and judgments

What is a termination agreement?

This is the termination of an employment relationship by way of an out-of-court agreement between the employee and the employer. In this case, no notice of termination will be given. Rather, the employment relationship ends at the point in time specified in the termination agreement.
Oftmals wird die Form des Aufhebungsvertrages gewählt, um eine Kündigung zu umgehen. Arbeitgeber bieten einen Aufhebungsvertrag gern solchen Arbeitnehmern an, die auf Grund ihres Status nur schwer oder gar nicht kündbar wären, wie z. B. Mitarbeiterinnen im Maternity Protection. Häufig wird dabei eine Abfindung in Aussicht gestellt, um dem Arbeitnehmer einen besonderen Anreiz zu bieten.

However, great caution is required here! With your signature on the termination agreement, you lose your protection against dismissal at the same time. Even the works council does not have to approve the termination of the employment relationship.

The employment office may even impose a ban on receiving unemployment benefits for up to twelve weeks. This is usually the case if it must be assumed that you yourself caused your unemployment through gross negligence by concluding the termination agreement.

When can a termination agreement be useful?

A termination agreement can generally be signed without risk if you already have a new job. The termination agreement is also an »elegant« way of terminating an employment relationship if you can avoid a justified dismissal by the employer in this way. Of course, this applies above all if you are threatened with termination without notice due to serious misconduct.

However, you should not allow the threat of a supposedly justified termination to push you into concluding a termination agreement. If in doubt, always seek advice from a lawyer or your responsible union.

Of course, you can also propose the termination of the employment relationship in certain cases by means of a termination agreement, e.g. B. if you have found another job and are bound to your previous company due to a long notice period. However, the employer does not have to respond to your suggestion. You can only appeal to his understanding. Especially if you can provide personal or family reasons for changing jobs (e.g. moving to your friend's house in another city), your request should be promising.

What you should consider when concluding a termination agreement
A termination agreement must always be in writing to be valid! Only sign a termination agreement after a reasonable period of reflection and review. Don't let your boss force you to sign. After all, a termination agreement can be associated with a number of personal and financial disadvantages. In principle, it is always advisable to have a termination agreement legally checked before signing it.

If you don't have the prospect of a new job, you should consider the following:

· The date on which your employment relationship is to be terminated should correspond to your regular notice period.

· The termination agreement must state that the employment relationship is terminated at the instigation of the employer for operational reasons.

Only under these conditions are you immediately entitled to unemployment benefit. If, according to the termination agreement, the employment relationship ends before the end of your regular notice period, any severance pay will be offset against the unemployment benefit.

What must be regulated in the termination agreement?

In addition to the termination date of the employment relationship, the termination agreement should clearly state that the termination of the employment relationship was initiated by the employer. In addition, the following points in particular should be regulated:

The continued payment of remuneration, any profit-sharing bonuses, etc.

· Any time off work

· The granting or compensation of vacation entitlements

· The return of a company car or other company property

· Any non-compete clause

· The issuance of the job reference and other certificates.

Challenge a termination agreement

A termination agreement can be challenged if it was accepted by the employee, for example by threatening to give notice of termination, but this would not have been justified.
Likewise, a termination agreement that came about due to fraudulent misrepresentation could be challenged if z. B. an employer falsely claims that the termination of the employment relationship is inevitable for operational reasons.

If a termination agreement is successfully challenged, the employee can be entitled to compensation from the employer. This would be the case, for example, if he consented to the cancellation in return for a disproportionately low severance payment and in this way incurred a financial loss.

Cancellation Agreement - Important Judgments

Dispute eines Aufhebungsvertrages
An employee by the threat of a legally
Unacceptable termination was caused by his employer to conclude a termination agreement, this can be contested within one year of the conclusion of the contract.
BAG, November 6, 1997 - AZ: 2 AZR 162/97

Concealment of wrongdoing
If an employer only learns of breaches of duty on the part of his employee after the termination agreement has been concluded, which would have justified his termination, the employer must nevertheless pay the employee a severance payment agreed in the termination agreement. The employee himself was not obliged to inform the employer about his misconduct.
Hessian LAG - AZ: 9 Sa 2207/99

No withdrawal from the termination agreement
An employee cannot withdraw from a settlement reached before the labor court on the termination of the employment relationship in exchange for the payment of a severance payment because the employer has become insolvent.
LAG Cologne, p. 1. 1996 - AZ: 4 Sa 909/94

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