Notice of termination, which did not comply with the minimum statutory notice period, resulted in a valid termination on the expiration of the notice given as the employee did not challenge the termination within the 3 week limitation period for raising a claim of unfair dismissal.
In this case an employee with 12 years service was dismissed with 2.5 months notice, despite the fact that he was statutorily entitled to 5 months notice as a result of his length of service. However, he did not raise a claim for the unpaid notice until 7 months after the notice of dismissal was issued.
The Federal Labour Court decided that his claim was out of time, that his dismissal had taken effect at the expiration of the 2.5 months notice given and that he was not entitled to payment to compensate him for the remaining 2.5 months notice. The court noted that in order to be successful the claim should have been raised within 3 weeks of notice being received (the same deadline as for claims of unfair dismissal).
This decision contradicts previous case law from the Federal Labour Court which had indicated that there was no time limit in which to raise claims for unpaid statutory notice entitlement. While the decision will be welcomed by employers, it is not an excuse to ignore employees' statutory notice entitlements as employees will still have a valid claim for payment provided it is issued in time.