Abstract (eng)
This paper relates to the legal problems, issues in mediation theory and practical challenges concerning the extraordinary notice of dismissal of apprentices in terms of § 15a BAG.
First a short introduction is given. A following summary of the historical and political processes, which lead to the adaption of § 15a, facilitate the comprehension of the current legal situation. After an overview of the process of dismissal and its immanent mediation process the legal problems are being discussed in detail.
These problems involve a series of uncertainties, such as the legal consequences of an improper dismissal, the calculation of the period in terms of § 15a, the requirement that certain declarations be in writing, the ambiguity concerning approval requirements, the possibility of an appeal against an improper dismissal in terms of the GlBG, the question of coverage in terms of the ArbVG and the legal situation in case of an apprentices sick leave during the time designated to the mediation process.
The main focus of this paper is put on two issues. First, whether the education guarantee in terms of § 38d AMSG, which is limited to underaged apprentices, is in accordance with the law of the European Union. Statutory interpretation leads to the conclusion that also apprentices of age are able to enforce a claim to an assignment of an apprenticeship training position in terms of § 38d AMSG. The second main topic is the issue of the legal nature of the extraordinary dismissal. In substance, it is a cancellation, which leads to further issues, mainly concerning the constitutional principle of non-discrimination. Because of the latter, protections against dismissal in terms of §§ 105ffArbVG have to apply analogously to all those apprentices who are not able to enforce a claim in terms of § 38d AMSG.
The discussion of the legal issues is followed by a description of the immanent mediation process from a theoretical point of view. After a short general introduction to the method of mediation, the specific mediation process of § 15a is described and discussed, partcularly with regard to the principle of voluntariness. In view of this background the legal obligation of the mediation, its significance concerning the legislators understanding of mediation and further problems, such as the missing obligation of the mediation parties to contribute to the mediation process, are being dealt with. The general adequacy of the mediation in terms of § 15a within the process of termination of an educational contract is being discussed and solutions are being proposed.
In conclusion the research questions are being answered and a short outlook is being given.