Extraordinary termination for cause

Usually the extraordinary termination is also known as „termination without notice“. This is because, in contrast to ordinary termination, the employment relationship is to be terminated with immediate effect – i.e. without observing a notice period.

However, extraordinary terminations are not necessarily terminations without notice. Also conceivable are extraordinary terminations with notice. The employer combines the notice of termination with a so-called social phase-out period so that the employment relationship ends only after the notice period has expired. This is the case, for example, if the employer wishes to give notice of termination for operational reasons to an employee who cannot be terminated on the basis of collective bargaining or statutory provisions.

If an employer wants to give an employee extraordinary notice, he needs an important reason for doing so. The law sees an important reason in the fact that the employer cannot reasonably be expected to continue the employment relationship until the end of the notice period. For this purpose, there must be facts on the basis of which, taking into account all circumstances of the individual case and weighing up the interests of both parties to the contract, it is no longer possible for the person giving notice to continue the employment relationship. An important reason is thus a particularly serious reason which makes it unreasonable for the party giving notice to wait for the regular period of notice. For this purpose, there must be facts which seriously burden the employment relationship. In principle, these can be operational, personal or behavioural reasons. The reasons for termination need not be explicitly stated in the notice of termination.

Extraordinary dismissal for operational reasons is only permitted in exceptional cases and is extremely rare in practice. It requires that the job has been lost and the employer cannot continue to employ the employee using all reasonable means. Furthermore, it must not be possible to give notice of dismissal. In practice, such cases only affect works council members and other employees with special protection against dismissal or those who cannot be dismissed under collective agreements.

However, for example, an insolvency of the company does not constitute an important reason. In this case, the appointed insolvency administrator has the option of giving notice of termination while observing shorter notice periods.

Extraordinary termination is also possible for personal reasons. However, according to the case law of the Federal Labor Court, this is only the case if there is a concrete disturbance of the employment relationship. For example, this could be due to illness, loss of the driving licence for professional drivers or serving a prison sentence.

However, an extraordinary dismissal is usually issued by the employer for reasons of conduct. In order to be effective, it requires that the dismissed person act in breach of contract. According to case law, the following prerequisites must be met:

• The dismissed employee must have seriously violated his contractual obligations. As a consequence, the employer cannot be expected to wait for the notice period.
• The employee’s breach of duty must be illegal, i.e. there must be no reasons justifying the breach.
• The breach must also have been committed at least negligently.
• The dismissal must also be proportionate. To this end, the employer may not have any milder means at its disposal to maintain the employment relationship despite the breach of duty. Milder means are, for example, a warning, a transfer and an ordinary termination. The previous duration of the employment relationship and the effects of the breach of duty are also taken into account.
• The employer’s interest in immediate termination must outweigh the employee’s interest in continued employment.

Examples of conduct-related reasons for dismissal that justify extraordinary dismissal are: gross insults from superiors or the employer, xenophobic statements or criminal offences such as theft at work.

Finally, an employer must give notice of extraordinary termination within two weeks. The period begins at the time when the employer becomes aware of the facts relevant to the dismissal.

In principle, the same conditions must be met for an extraordinary dismissal by the employee. Thus, the employee must also comply with the two-week notice period and state the reason for the termination. For example, unpunctual payments, sexual harassment or insults have repeatedly been recognised as sufficient reasons for termination. In addition, no milder means of resolving conflicts, such as a warning notice, may be available.

If an employee has received a dismissal without notice, an action for protection against dismissal within the three-week period is strongly recommended. The requirements for an effective extraordinary dismissal are strictly regulated by the courts.

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more about labour law: Labour law in hospitals – Labour law in the pharmaceutical industry – Labour law in the care of the elderly- Labour law in the railway sector – Labour law cases– Labour law and corona

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The coronavirus has a strong impact on the entire working environment. We are currently receiving numerous inquiries on this topic every day and we notice that there is a lot of uncertainty.

⏩ On this page we have summarised the most important questions on the subject of termination due to corona.

⏩ In addition, we have collected the most frequently asked questions for employees, employers and works councils on labour law and Corona and published the corresponding answers in a separate section.

Overview
Is a dismissal because of Corona even possible?
Termination without notice because of Corona
Termination due to Corona
Termination agreement due to Corona
Corona Virus – Does the employer have to pay?
The most frequently asked questions on the subject of „Labour law and Corona“.
Any other questions? We help! (Free initial assessment)

Translated with www.DeepL.com/Translator (free version)

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