You have won your unfair dismissal claim – yet you do not return to your workplace. A dissolution motion unfair dismissal is often the reason: it allows the employer to end the employment relationship in exchange for a severance payment, even if the dismissal was unlawful. For you as an employee, this is a bitter aftertaste – but not the end of the road. In this article you will learn what this motion means, what hurdles the employer must overcome, how the severance is calculated, and how you can respond wisely.
dissolution motion unfair dismissal: what does it mean?
This special option in the unfair dismissal proceedings allows the employer to end the employment relationship in exchange for a severance payment, while the unfair dismissal claim itself seeks only to establish the dismissal’s invalidity and to continue employment. The law calls this construct “dissolution of the employment relationship”. It is regulated in § 9 of the Dismissal Protection Act (KSchG), which you can read here in full text.
The twist: Not only the employee can file such a motion, but also the employer. And exactly this is what surprises many employees. You have won in court, the judge has found that the dismissal was socially unjustified – and yet you cannot return because the employer files the dissolution motion unfair dismissal in the same proceedings or in the appeal. The court then examines whether continuing the employment relationship would be unreasonable for the employer. If so, it orders the dissolution and sets a severance amount.
when can the employer file the dissolution motion unfair dismissal? requirements and hurdles
The employer’s motion to dissolve is not a free pass. The court must examine whether there are grounds that make continued cooperation unreasonable. These may include a shattered trust relationship, personal animosities, or an atmosphere that makes fruitful cooperation impossible. The employer must concretely state and prove these grounds – vague assertions are not enough. This is an important hurdle that many employers cannot overcome.
Example: You have defended against a redundancy dismissal and won. The employer now argues that the trust relationship is destroyed because you filed a claim. That alone is not enough. The court demands more: for instance, concrete incidents that go beyond merely filing the claim. Whoever files such a motion solely because of the claim has poor chances. What matters is that the unreasonableness exists from the employer’s perspective – but it must be objectively understandable. A won unfair dismissal claim alone does not make return impossible.
Another important point: the motion to dissolve does not have to be filed in the first round of proceedings. The employer can also raise it in the appeal. For you as an employee, this means you must also reckon with this route after a first‑instance victory. It is therefore advisable to familiarize yourself with the topic early – not only when the motion has already been filed.
how is the severance amount determined? factors that matter
If the court grants the motion to dissolve, the question arises as to the amount of the severance payment. Here the rule of thumb applies: as a rule, half a month’s gross salary per year of service is used. However, this formula is not a statutory automatic entitlement but a guideline that courts apply in practice. The law itself speaks of an “appropriate severance payment” without specifying a formula. Thus the judge has discretion.
For the calculation, several factors are decisive: the length of your tenure, your age, the company’s financial situation, and whether you have found a new job. Also relevant is whether the employer files the motion to dissolve on its own initiative or whether you yourself filed it. In practice, courts orient themselves on the aforementioned half‑month’s salary per year – but there are deviations upward and downward. If you expect a higher severance, you must provide strong arguments, such as a long tenure or a difficult labor market.
Important: the severance under § 9 KSchG is not the same as the severance under § 1a KSchG. The latter applies only if the employer links the dismissal to a severance offer and you waive a claim. The motion to dissolve is a judicial decision – you therefore have no entitlement to a specific amount; the court sets it. Nevertheless, you as an employee can exert influence by arguing for a certain amount during the proceedings and presenting your reasons.
employee strategies: how to react to the motion to dissolve
When the employer files the motion to dissolve, you face a difficult decision. On the one hand, you can oppose the dissolution if you really want to return to work. On the other hand, it may be strategically smarter to accept the dissolution and strive for the highest possible severance. The right strategy depends on your personal situation. Ask yourself: Do you really want to go back to a company that wants to get rid of you? Or is a clean break with a decent severance not the better option?
If you decide to seek reinstatement, you must actively object. The court must then examine whether the dissolution is truly justified. Here you can argue that cooperation remains possible despite the conflict. An employment‑law attorney can assess your chances of success – because courts are not always employee‑friendly in such cases. If the employer presents good grounds for unreasonableness, the court will grant the dissolution even if you object.
If you instead opt for the severance, you should bundle your arguments for a high amount. These include: long tenure, high age, poor job‑market prospects, and also the fact that the employer issued the dismissal unlawfully. Another point: you can try to negotiate a higher severance rather than wait for the court’s decision. In practice, many cases end in a settlement where both sides make concessions. An experienced attorney can negotiate on your behalf – and RechtStark as a litigation funder can secure the costs of such proceedings, so you are not left out of pocket for litigation expenses.
distinction from the unfair dismissal claim: what is the difference?
Many employees confuse the motion to dissolve with the unfair dismissal claim itself. In fact, these are two different tools with different aims. The unfair dismissal claim seeks to establish that the dismissal is invalid – therefore the employment relationship continues. The motion to dissolve, by contrast, presupposes that the dismissal is invalid but nevertheless aims to terminate the relationship – in exchange for a severance payment. One could say: the unfair dismissal claim is the “whether” of continued employment, while the motion to dissolve is the “how” of termination.
Another difference concerns the deadlines. An unfair dismissal claim must be filed within three weeks of receiving the dismissal – this deadline is set in § 4 KSchG. The motion to dissolve, by contrast, is not bound by any such deadline; it can be raised during the proceedings. This means for you: even if you have met the claim deadline, the employer can still file the motion to dissolve in the proceedings. You should therefore not feel safe just because the claim was filed on time.
The burden of proof also differs. In an unfair dismissal claim, the employer must substantiate and prove the social justification of the dismissal. For the motion to dissolve, the employer must justify why continued employment would be unreasonable. This is a separate assessment, independent of the question of whether the dismissal is valid. In practice, this means that an employer who cannot justify the dismissal may nevertheless file the motion to dissolve – and thus end the employment relationship, albeit with a severance payment.
practical tips: what to watch after winning your claim
If you have won your unfair dismissal claim, you are not yet at the finish line. Here are some practical steps you should take now: first, wait for the appeal period to elapse. The employer may lodge an appeal – and in the appeal file the motion to dissolve. Second, document any developments that could indicate a breakdown of the trust relationship. If the employer tries to put obstacles in your way, this may work in your favor – or against you if you yourself behave inappropriately.
Third, review your financial situation. If you expect a severance payment, you should inform yourself about the tax implications. Severance payments are subject to the so‑called fifth‑rule, which spreads the tax burden over several years – a complex topic you should discuss with a tax adviser. Fourth, consider whether you are looking for a new job. If the motion to dissolve is looming, it can be worthwhile to apply in parallel. A new position can strengthen your bargaining position – or at least ease your financial uncertainty.
Fifth, seek legal assistance early. An employment‑law attorney can assess the prospects of a possible motion to dissolve and define your strategy. If you are worried about the costs, RechtStark as a litigation funder can step in and finance the proceedings – from unfair dismissal claims for large corporations to severance negotiations for top earners. This way you remain able to act without falling into financial distress.
One final tip: stay factual. Even if the situation is frustrating – a won lawsuit is a strong signal. The employer must now either continue to employ you or pay a severance. Either outcome is a success. Use this position to find a solution that is best for you in the long run. Whether that means returning to your workplace or a clean break with a decent severance – you have it in your hands to make the most 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.