Definiteness of an Extraordinary Notice of Termination

In its ruling of May 27, 2021 (Case No.: 6 Sa 20/21), the Cologne Higher Labor Court (LAG) decided that an "extraordinary termination" that refers to the provisions of the collective bargaining agreement on ordinary termination is unspecific with regard to the termination date intended by the terminating party and is therefore invalid as a whole.

Facts

The ruling of the Cologne Higher Labor Court is based on the following facts: The parties are disputing the validity of a termination. The plaintiff is severely disabled and, on the basis of an indisputably applicable collective bargaining agreement standard, can only be terminated for cause due to his age and the length of service he has completed.

After approval by the Landscape Association (“Landschaftsverband”), the defendant terminated the employment relationship with the plaintiff on the grounds of conduct contrary to recovery, with the termination letter literally stating as follows:

"I hereby terminate the employment relationship existing with you since 04.06.1996 at B S A  extraordinarily pursuant to Section 34 para. 2 p. 1 in conjunction with para. 1 of the collective bargaining agreement for the public service (TVöD)."

In his action for protection against dismissal, the plaintiff objected to this letter of termination. He is of the opinion that the notice of termination is not sufficiently definite.

The Labor Court had upheld the action, the defendant's appeal was unsuccessful.

Reasons for the decision

In the opinion of the LAG, the notice of termination was unspecific and therefore invalid. It was not clear from the termination declaration that a termination without notice had been intended. Rather, the date on which the termination was to take effect remained completely open. The letter read:

"I hereby terminate ... extraordinarily pursuant to Section 34 para. 2 p. 1 in conjunction with para. 1 ... (TVöD)."

"Section 34 para. 2 p. 1 in conjunction with para. 1 TVöD", quoted here in abbreviated form, reads:

"(1) Until the end of the sixth month since the beginning of the employment relationship, the notice period shall be two weeks to the end of the month. Otherwise, the period of notice shall be ... months to the end of a calendar quarter in the case of a period of employment.

(2) Employment relationships of employees who have reached the age of 40 and to whom the regulations of the Western collective bargaining area apply may only be terminated by the employer for good cause after a period of employment (subsection 3) of more than 15 years."

The notice of termination thus first refers to the provision on "non-terminability" under the collective bargaining agreement ("Section 34, Paragraph 2, Sentence 1") and then to the notice periods in the case of ordinary termination ("... in conjunction with Paragraph 1 TVöD"), namely 6 weeks, 3 months, 4 months, 5 months, 6 months, and then calls the whole thing "extraordinary".

The rule of interpretation referred to by the defendant, according to which extraordinary termination with a social expiry period is a special case and must therefore be expressly designated as an exception to the rule, is also of no help here. With the reference to Section 34, Subsection 1, TVöD, the recipient of the declaration would have to assume that any period of notice was to apply, i.e., a termination without notice could not be meant, consequently, that precisely such an exceptional case existed in which an extraordinary termination could not be recognized as a termination without notice.

Notes for practice

The decision of the Cologne Higher Labor Court (LAG) makes it clear that those giving notice should exercise increased care when drafting a letter of termination. Otherwise, inaccuracies in the wording of a termination declaration may result in the invalidity of the entire termination declaration.

Upon receipt of the notice of termination, the recipient of the notice must be able to determine whether ordinary or extraordinary termination is intended and the date on which the employment relationship is to end (Federal Labor Court (BAG), judgment of June 20, 2013 - 6 AZR 805/11, para. 14).

In the present case, the notice of termination was not sufficiently specific, as it was not clear from the notice of termination at what time the employment relationship was to end. The termination was not clearly recognizable as a termination without notice, because it had referred to a provision that had dealt with an ordinary termination. Therefore, the termination could not be interpreted with sufficient certainty as a termination without notice.

Also, the comparison referred to here by the defendant employer to the extraordinary notice with social expiration period was not convincing. This is because, according to the case law of the Federal Labor Court, only in the case of extraordinary termination for operational reasons is it mandatory to grant the longest notice period as a social expiry period. In the case of all other reasons for termination, the social expiry period can be freely chosen (see also BAG, judgment dated February 5, 1998 - 2 AZR 227/97, para. 22). For this reason, too, it was not apparent in the present case on which date the termination was to take effect.