Blocking period

If the employees themselves have caused the unemployment intentionally or through gross negligence, this is considered a breach of insurance, or behaviour contrary to insurance law.

This is the case in the following situations:

– termination notice by the employee,

– a termination agreement (also called dissolution agreement); because this cannot be concluded against the will of the unemployed person

– a winding-up agreement, if it is part of an overall agreement (covert termination agreement), i.e. if it is combined with a termination by the employer

– premature termination of the employment relationship by the employee, on the basis of a “turbo-clause” agreed in the termination or liquidation contract (see § 5 in our termination agreement)

– Participation casess: the employment relationship is considered to have been terminated by the employee if it would not have been terminated without their active participation;

– the actual cessation of employment without notice (no power of disposal by the employer and/or lack of willingness of the employee to work)

– an employer’s notice of termination due to the employee’s conduct in breach of contract

The following situations are not covered:

– the mere acceptance of an employer’s notice of termination (even if severance pay is accepted); the acceptance of a notice of termination which is obviously invalid, or the prior agreement that no legal action will be taken may, however, indicate that the employee is responsible for the unemployment;

– a settlement in front of the labour court, if there are no indications of conduct contrary to insurance law (in this case, a higher severance payment than the standard severance payment can therefore be agreed without the threat of a blocking period)

– winding-up contracts concluded after the expiry of the period for bringing an action for unfair dismissal if no prior agreement has been reached

– the non-acceptance of a notice of termination subject to change, the failure to conclude a new or extended employment contract

If there is a “breach of insurance”, the employee must demonstrate that there was a good reason for this. Only if there is no important reason, the entitlement is suspended for the duration of a blocking period.

An important reason for the conclusion of a termination agreement or for a self-dismissal is given if

– the employer has declared with certainty that they will terminate the employment contract for operational or personal reasons, but not for reasons of conduct, and

– the employer’s notice of termination would have taken effect on the same date as or earlier than the end of the employment relationship; in the case of a release from work by mutual consent, the end of the employment relationship is decisive if remuneration is paid until then

– the period of notice would be observed in the event of a termination,

– the employee was not non-terminable

Or

– If a severance payment of up to 0.5 monthly salaries is paid to the employee for each year of the employment relationship (based on § 1a KSchG). In this case, it is irrelevant whether the threatened employer’s termination of employment would be valid, or whether the conditions in indents 1 – 5 are fulfilled.

Good cause is also deemed to exist if the impending termination would be lawful and the employee has avoided objective disadvantages for their professional advancement arising from an employer-side termination, or presents other reasons for which they had to fear objective disadvantages arising from an employer-side termination. Such reasons may be advantages to which there would have been no entitlement in the event of a termination. Such advantages are, for example, severance payments which are higher than 0.5 monthly salaries per year of employment and to which no claim can be made without the conclusion of a termination agreement.

Comments of the Employment Agency

Summary: In the case of a termination and winding-up agreement, a blocking period can generally be avoided if the normal period of notice is observed, if there is certainty that a termination notice would be given by the employer without this agreement, and if a severance payment of no more than 0.5 gross monthly salary per year of employment is offered.

MAYR Kanzlei für Arbeitsrecht provides this article as an orientation guide. For an individual consultation, advice should always be obtained from a specialist lawyer for labor law. We would like to draw your attention to the fact that we therefore cannot assume any liability for the correctness and completeness of this contribution.