Kündigung in Mutterschutz, Elternzeit und Pflegezeit – Zulässigkeitserklärung beantragen

• § 17 Gesetz zum Schutz von Müttern bei der Arbeit, in der Ausbildung und im Studium (Mutterschutzgesetz – MuSchG) – Kündigungsschutz
• § 18 Bundeselterngeld- und Elternzeitgesetz (BEEG) – Kündigungsschutz
• § 5Pflegezeitgesetz (PflegeZG)– Kündigungsschutz
• § 2 Absatz 3Familienpflegezeitgesetz (FamilienpflegeZG) – Familienpflegezeit
• Sächsisches Verwaltungskostengesetz (SächsVwKG)
• Sächsisches Kostenverzeichnis (SächsKVZ), lfd. Nr. 69, Tarifstelle 1 – Mutterschutz und Elternzeit
  
• Allgemeine Verwaltungsvorschrift zum Kündigungsschutz bei Elternzeit

If you wish to dismiss employees who are subject to special protection against dismissal, you must apply for a declaration of admissibility prior to the dismissal.

The following groups of people are subject to special protection against dismissal:

• Women
  • during pregnancy
  • 4 months after a miscarriage after the 12th week of pregnancy,
  • until the end of the protection period after the birth,
• Parents on parental leave,
• Persons caring for a relative in need of care.

Please note the special features of the different dismissal protection rules for these groups of people:

• For carers, protection against dismissal applies not only during the period of leave for caring, but also as soon as you are notified that you will be unable to work. The protection applies for a maximum of 12 weeks before the announced start date. The protection against dismissal also applies not only when care is provided, but also when care is organised. Under certain conditions, employees can be released from work for up to 10 days for this purpose.
• Protection against dismissal for parents on parental leave begins as soon as the application is submitted.
• There is a special ban on dismissal for parents
  • 8 weeks before the start of parental leave if the child is under 3 years old.
  • 14 weeks before the start of parental leave if the child is between 3 and 8 years old.

The highest state authority responsible for occupational health and safety or the body designated by it will only grant you approval if a verifiable reason for cancellation can be proven. The competent authority in the Free State of Saxony is the State Directorate of Saxony.

Note: For companies that are subject to mining supervision, the Sächsische Oberbergamt is generally the supervisory authority responsible for protection against dismissal.

False information in your application can lead to criminal prosecution.

• Written application with reasons
• Address of the person to be dismissed
• Contract of employment
• If your livelihood is at risk: Proof that your economic existence is jeopardised (e.g. expert opinion of a sworn balance sheet expert, under certain circumstances: Balance sheets and profit and loss accounts)
• In the event of business closure, if available:
  
  • Shareholder resolution on the closure of the business
  • business deregistration
  • Copy of the cancellation of the lease agreements for the business premises and similar documents

If the declaration of admissibility of the cancellation is requested for reasons other than those mentioned, please explain these and provide suitable evidence.

The competent authority may request further information and documents if necessary.

• There is a valid reason for dismissal, such as insolvency, partial closure of the business or a particularly serious breach of duty by the employee.
• You employ staff from one of the three groups of people who are subject to a special prohibition on dismissal.
• You have not yet dismissed the employee.

EUR 55.00 to 1,400 (depending on cost and importance)

Dismissal Despite Protection Against Dismissal

• As an employer or (in the case of insolvent companies) as an insolvency administrator, you submit an informal written application to the Arbeitsschutzbehörde ("competent authority"). Special reasons for dismissal must be given.
• The person to be dismissed will be given the opportunity by the Arbeitsschutzbehörde to comment on the grounds for dismissal presented.
• The parties involved will each receive a decision. Both can appeal against this decision.
• Once you have received the official declaration of admissibility, you may give notice of termination. The contractual or statutory notice period must be observed.

The costs of the administrative proceedings are borne by you as the applicant.

Legal Action in the Event of Termination without a Declaration of Admissibility

If the employee is dismissed without the required declaration of admissibility from the labour protection authority, the person concerned should file a complaint with the competent labour court so that it can declare the dismissal invalid. It is advisable to file the complaint within three weeks of receiving the notice of termination in order to avoid disputes.

You must submit the application before the cancellation is issued.

Appeal (details about the procedure in the official notification)