Won the dismissal protection lawsuit – and still got fired again? This question arises for many employees who were successful in labor court. After a victorious process everything seems fine, but some employers do not give up. They look for new ways to separate from an employee – and in doing so, statements you made in court can suddenly become dangerous.
The victory in labor court is an important success, but it does not automatically mean that your employment relationship is permanently secure. Employers who have lost a dismissal protection lawsuit are often frustrated and try to achieve separation through other means. A particularly sneaky method is a second termination based on facts that only came to light during the first proceeding – for example, through your own statements.
Why the employer can terminate again after the victory
A dismissal protection lawsuit does not automatically end with final security. The employment relationship continues, but the employer may, under certain circumstances, issue a new termination. This requires new facts that either arose after the first proceeding or were unknown to the employer at that time. Exactly here lies the danger: If you said things in the first proceeding that the employer did not know, those statements can later serve as the basis for a second termination.
For example, you stated in the dismissal protection lawsuit that you consider your supervisor incompetent and that you have complained about him. This statement is recorded in the minutes of the oral hearing. After winning the case, the employer can pick up this statement and claim that you have permanently destroyed the trust relationship. He could derive a behavior‑based termination from it – even though you won the first proceeding.
Dismissal protection won – but the danger is not over
This heading may be surprising, but it is reality. Anyone who has won a dismissal protection lawsuit should not live in false security. While case law requires new facts for a second termination, your own statements from the first proceeding can exactly constitute such new facts. This is especially true if you admitted things in the process that the employer did not know – such as misconduct, personal problems, or critical remarks about colleagues or supervisors.
Employers who have lost a dismissal protection lawsuit often look for alternative ways to separate from an employee. They comb through the minutes of the oral hearing for statements that can be used against the employee. The minutes are a public document to which the employer has access after the proceeding. For the employer, the minutes are therefore a veritable goldmine.
Let’s take a concrete example: An employee stated in the first proceeding that he considers his supervisor incompetent and that the department would function better without him. This statement is recorded verbatim. After winning the case, the employer issues a second termination – this time with the reasoning that the employee destroyed the trust relationship through these remarks. The court in the second proceeding will examine whether these statements are truly new and whether they justify a termination. In many cases, such statements are considered a significant breach of duty.
Why court statements can become a trap
In the first proceeding you may have said things that can be used against you. This is not because you lied, but because you formulated them carelessly in the emotional situation of the process. Perhaps you were annoyed with your boss and expressed it in a way that weighs heavily in hindsight. Or you admitted that you handled private appointments during work time – an innocuous remark that the employer could later construe as time‑theft.
The legal foundations can be found in the Dismissal Protection Act (KSchG) in full. There it is regulated under what conditions a dismissal is socially justified. A second termination after a victorious lawsuit must measure up to these standards. The employer must therefore show that the new facts justify a termination for behavioral, personal, or operational reasons. He cannot simply repeat the same termination that was already declared invalid.
This means: The employer must name facts that either occurred after the first proceeding or were not known in the first proceeding. Your court statements can be exactly those new facts if the employer was unaware of them. For example, you stated in the first proceeding that you have been suffering from severe stress for months and therefore sometimes work unfocused. This statement was not decisive in the first proceeding, but the employer can later pick it up and claim that you are no longer healthily able to perform your duties – a personal‑grounds termination.
What you should watch out for after winning the case
If you have won the dismissal protection lawsuit, you should be aware that the employer continues to look for opportunities. Therefore, it is important that you also behave after a victorious process in a way that does not give the employer any opening. Avoid statements that could be perceived as criticism or as an admission of misconduct. Pay attention to your punctuality, work performance, and interaction with colleagues. Document if the employer harasses you or withdraws tasks – this may later be important.
One way to protect yourself in the long term is to conclude a severance agreement. If you already feel that the relationship with the employer is strained, a mutual solution can be sensible. For this you should consult an independent employment‑law attorney to negotiate a fair severance. Also the severance pay for breach of duty of care can become relevant in certain constellations if the employer behaves inappropriately.
If you receive a second termination, you should act quickly. The lawsuit period is usually three weeks after receipt of the termination. You must therefore promptly file a dismissal protection lawsuit, otherwise the termination becomes effective. In this situation it is especially important to consult an employment‑law attorney who can assess the chances of success and draft the claim. A litigation funder such as RechtStark can cover the costs of such proceedings if the prospects are good – this relieves you financially.
Conclusion: How to protect yourself from the repetition trap
A won dismissal protection lawsuit is a success, but not a free pass for the future. Employers who have lost a case often look for new ways to separate from an employee. Your own court statements can then become a weapon. Therefore, you should already formulate carefully in the first proceeding and prepare your statements well. Consult an experienced attorney before testifying in court – this protects you from careless remarks.
After winning the case, you should continue to work professionally and avoid giving the employer any opening. If the employer terminates again, do not let the deadline pass and seek legal advice immediately. Remember: Even a second termination can be ineffective if it is not based on new facts. With the right strategy and the support of an employment‑law attorney you can also fend off the second termination.
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.