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Ter­mi­nat­ing an ap­pren­tice - fu­tile or just ex­cep­tion­ally dif­fi­cult?

October 2022 · Estemated readtime: Min

The employment of trainees entails a number of special features. For example, it is often difficult to determine who is an apprentice within the meaning of the BBiG, as we have already reported. In addition, employers are regularly confronted with breaches of duty or low performance in the apprenticeship. The termination of an apprentice in particular presents employers with major challenges. In this article, we will show you what to look out for:

 

How can a trainee relationship be terminated at all?

Unlike in "normal" employment relationships, the probationary period for apprentices is at least one month and can be extended to a maximum of four months. During the probationary period, it is possible for the employer to terminate the apprentice relationship without giving reasons and without observing a notice period. After the end of the probationary period, however, an apprentice relationship can only be terminated for good cause in accordance with Section 22 (2) No. 1 of the Vocational Training Act (BBiG). There is no other possibility of termination for the company.

 

The existence of good cause can only be assumed if the training objective is significantly endangered and the continuation of the apprentice relationship is at the same time unreasonable. This is a very high hurdle. The standard of review is even more stringent than for extraordinary termination of an employment relationship. When assessing the misconduct, both the apprentice' age and the purpose of the training must be taken into account.  As part of the balancing of interests to be carried out, it must also be examined whether all conceivable educational means and the involvement of the legal representative (parents) have been exhausted before the notice of termination is issued. The closer the final examination required for the completion of the apprenticeship approaches, the higher the requirements that must be met by the employer before a notice of termination is issued. Due to these special features, termination shortly before completion of the apprenticeship is almost impossible in practice.

 

What must be considered before giving notice of termination?

It is true that individual breaches of duty that are in themselves suitable as good cause can justify extraordinary termination of the training relationship, depending on the facts of the case. Here, too, however, there is a basic requirement for a prior warning. In this respect, the same principles apply as in the employment relationship. In addition, it is sometimes argued that in order to do justice to the special legal status of the apprentice, a numerical increase in the number of warnings required is necessary. For example, if three warnings would otherwise be required, a further warning would be required; in the case of complex breaches of duty, three plus two warnings would be required; and in the case of maximum complexity, three plus three warnings would be required before a trainee is dismissed. However, such schematic considerations are not appropriate. In any case, a warning is only completely unnecessary if the apprentice lacks any understanding of the consequences of his or her behavior. This can only be assumed in very special individual cases.

 

What else needs to be considered and what special features apply?

Another peculiarity in the termination of trainees takes place in the procedural area. In the case of disputes arising from an existing apprentice relationship, an action cannot be brought immediately before the competent labor court. Rather, the matter must first be referred to the conciliation committee, if such a committee has been established. The hearing before the conciliation committee prescribed in Section 111 (2) sentence 5 of the Labor Court Act is a prerequisite for an action, which cannot be waived by the parties to the action. A lawsuit filed beforehand is inadmissible. However, the procedural prerequisites must be met at the conclusion of the hearing, i.e. the conciliation proceedings can be made up until the chamber hearing in the employment court procedures. However, the conciliation proceedings must have ended at that time and the award must not have been accepted.

 

Another special feature is that, pursuant to Section 22 (3) BBiG, notice of termination must not only be given in writing - as is usually the case. It is also mandatory to always state the reasons for termination.

 

What is therefore recommended to employers?

Employers are strongly advised to make the best possible use of the probationary period and to deal with any separation scenario in good time. Once the probationary period has expired, it is almost impossible to terminate an apprentice’ contract - although it is not hopeless. The probationary period should therefore be utilized not only in terms of time, but also in terms of expertise, in order to decide whether the apprenticeship should be continued in the company. If notice of termination is given after the end of the probationary period, this should be well prepared beforehand, as stating the reasons for termination restricts later possibilities for action.

 

If the apprentice is still a minor, the notice of termination issued by the company must also be sent to the legal representative.

 

Irrespective of the above, the apprentice relationship can be terminated by the contracting parties at any time by mutual consent by concluding a termination agreement either with immediate effect or at a specified later date. However, practice has shown that in view of the high level of protection on the part of the apprentice, there is generally very little interest in this.

 

This is particularly true if one takes into account what happens in the event that the apprentice fails the final examination. If the apprentice demands it, the vocational training relationship is extended until the next possible repeat examination. However, employers who actually want to part with the apprentice in question can breathe a sigh of relief: the extension is for a maximum of one year.

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