If you have won your dismissal protection lawsuit but still cannot return to work, the dismissal protection lawsuit dissolution may be the reason. This legal move allows the employer to end the employment relationship against a severance payment, even when the court has declared the dismissal unlawful.
Dismissal protection lawsuit dissolution: What it means
During a dismissal protection lawsuit, the employee seeks a declaration that the termination was invalid and asks for reinstatement. The dismissal protection lawsuit dissolution, however, is a separate request that the court can grant to terminate the employment relationship while awarding a severance package.
Employers often file the dismissal protection lawsuit dissolution when they argue that continuing the employment relationship would be unreasonable for them.
When can the employer file the dismissal protection lawsuit dissolution? Requirements and hurdles
The employer’s dismissal protection lawsuit dissolution is not a blank check. The court must examine whether grounds exist that make further cooperation unreasonable. Examples include a destroyed trust relationship, personal hostilities, or an atmosphere that makes productive collaboration impossible. The employer must substantiate these reasons concretely and prove them – vague assertions are insufficient. This is an important hurdle that many employers cannot overcome.
For instance, you have successfully challenged a redundancy‑based dismissal and won. The employer now claims that the trust relationship is destroyed because you filed the lawsuit. That alone is not enough. The court expects more: specific incidents that go beyond the mere act of suing. Consequently, merely relying on the lawsuit to justify the dismissal protection lawsuit dissolution rarely succeeds. Crucially, the unreasonableness must be viewed from the employer’s perspective but must also be objectively comprehensible. Winning the dismissal protection lawsuit alone does not make reinstatement impossible.
Another key point: the dismissal protection lawsuit dissolution does not have to be filed in the first instance. The employer can also raise it in the appeal. As an employee, you must therefore anticipate this step even after a first‑instance victory. It is wise to address the issue early – not only after the application has already been submitted.
Severance amount: Which factors matter?
If the court approves the dismissal protection lawsuit dissolution, the question of severance size arises. In practice, a common rule of thumb is half a gross monthly salary per year of service. This formula is not a statutory automatism but a guideline that courts frequently apply. The law itself speaks of an “appropriate severance” without specifying a concrete calculation, leaving the judge a margin of discretion.
Relevant factors for the calculation are the length of service, the employee’s age, the company’s financial situation, and whether the employee has already found a new position. Also relevant is whether the employer initiated the dismissal protection lawsuit dissolution voluntarily or whether the employee filed it themselves. In practice, courts tend to orientate toward the half‑monthly‑salary‑per‑year benchmark, though deviations upward or downward occur. To secure a higher severance, you need strong arguments, such as a long tenure or a difficult labor market.
Important: The severance under § 9 KSchG differs from the severance under § 1a KSchG. The latter applies only when the employer links the dismissal to a severance offer and you waive the lawsuit. The dismissal protection lawsuit dissolution is a court decision – you have no entitlement to a fixed sum; the court determines it. Nevertheless, you can influence the amount by presenting your arguments during the proceedings.
Employee strategies: How to respond to the dismissal protection lawsuit dissolution
When the employer files the dismissal protection lawsuit dissolution, you face a tough choice. You can oppose the dissolution if you truly want to return, or you may find it tactically smarter to accept the dissolution and push for the highest possible severance. The right approach depends on your personal situation. Ask yourself: Do you really wish to go back to a company that wants to be rid of you? Or is a clean break with a decent severance the better option?
If you opt for reinstatement, you must actively object. The court will then assess whether the dissolution is truly justified. Here you can argue that cooperation remains possible despite the conflict. A specialist employment lawyer can evaluate your prospects – courts are not always employee‑friendly in such matters. If the employer presents convincing reasons for unreasonableness, the court will grant the dissolution even over your objection.
If you prefer the severance route, you should bundle your arguments for a high payout. These include lengthy service, advanced age, poor job‑market prospects, and the fact that the employer issued an unlawful dismissal. Another tactic: try to negotiate a higher severance through a settlement instead of waiting for the court’s decision. In practice many cases end in a compromise where both sides concede. An experienced lawyer can negotiate on your behalf, and RechtStark as a litigation funder can cover the procedural costs so you are not left out of pocket.
Difference from the dismissal protection lawsuit
Many employees confuse the dismissal protection lawsuit dissolution with the dismissal protection lawsuit itself. Though related, they serve distinct purposes. The dismissal protection lawsuit aims to establish that the termination was invalid – the employment relationship therefore continues. The dismissal protection lawsuit dissolution presupposes that the dismissal is invalid but nevertheless seeks to end the relationship – against severance. You could say the dismissal protection lawsuit decides the “whether” of continued employment, while the dismissal protection lawsuit dissolution decides the “how” of termination.
Another distinction concerns deadlines. A dismissal protection lawsuit must be filed within three weeks of receiving the notice – this period is set in § 4 KSchG. The dismissal protection lawsuit dissolution is not bound by such a deadline; it can be introduced at any stage of the proceedings. Consequently, even if you met the lawsuit deadline, the employer may still file the dismissal protection lawsuit dissolution later in the process. You should not feel safe merely because you submitted the lawsuit on time.
The burden of proof also differs. In a dismissal protection lawsuit the employer must justify the social validity of the dismissal. In the dismissal protection lawsuit dissolution the employer must demonstrate the unreasonableness of continuing the employment relationship. This is a separate assessment, independent of the question of dismissal validity. In practice this means an employer who cannot justify the dismissal may still file a dismissal protection lawsuit dissolution and thereby terminate the contract – albeit with a severance payment.
Practical tips: What to watch after winning the lawsuit
Winning your dismissal protection lawsuit does not mark the finish line. Consider these practical steps: First, await the expiry of the appeal period. The employer may lodge an appeal and, within that appeal, submit the dismissal protection lawsuit dissolution. Second, record any events that could indicate a breakdown of the trust relationship. If the employer tries to place obstacles in your way, this may support your case – or work against you if you behave improperly. Third, review your finances. If you anticipate a severance, inform yourself about the tax‑advantageous fifth‑rule, which spreads the tax burden over several years – a topic best discussed with a tax adviser. Fourth, think about job hunting. If a dismissal protection lawsuit dissolution looms, applying elsewhere in parallel can strengthen your negotiating position or at least alleviate financial uncertainty. Fifth, obtain early legal counsel. An employment‑law specialist can assess the chances of a dismissal protection lawsuit dissolution and shape your strategy. If you worry about expenses, RechtStark as a litigation funder can finance the procedure – from dismissal protection lawsuits at large corporations to settlement negotiations for top earners. This keeps you able to act without falling into financial distress.
Finally, stay factual. Even if the situation is frustrating, a victorious lawsuit is a strong signal. The employer must now either continue employing you or pay a severance. Both outcomes constitute a success. Use this position to craft a solution that serves your long‑term interests – whether that means returning to your workplace or parting ways with a proper severance. You hold the power to make the best of the situation.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.