Table of Contents
- 1 When is termination without notice permissible?
- 2 When does the extraordinary termination take effect?
- 3 When can an employer terminate without notice?
- 4 When can an employee terminate without notice?
- 5 How you can defend yourself against termination without notice
- 6 Termination without notice - important judgments
When is termination without notice permissible?
There must always be an important reason for termination without notice or - legally correct - extraordinary termination. Such is given in accordance with Section 626 (1) BGB if the terminating party, taking into account all the circumstances of the individual case and weighing the interests of both contracting parties, cannot be expected to continue the employment relationship until the end of the notice period or until the agreed termination.
Two prerequisites are therefore required for extraordinary termination:
· A contract partner must have committed a significant breach of contract.
· After this incident, it must be unreasonable for the other contracting party to continue the employment relationship.
However, the employer may only use the extraordinary termination as a last resort against the employee. Before doing this, he must exhaust all possibilities to maintain the employment relationship. For this reason, a warning must usually first be given to make it clear to the employee that in the event of continued behavior in violation of the contract, there is the possibility of extraordinary termination.
However, such a warning is not required if it is a violation of the company rules or the company peace or if it is within the personal sphere of trust of the contractual partner or the company. This includes, for example, offenses against property, assets, health or the honor of the employer or colleagues, as well as the disclosure of trade secrets.
In principle, the right to extraordinary termination applies equally to employer and employee. It must also not be excluded by contract. Extraordinary dismissal can even be declared to employees who otherwise enjoy special protection against dismissal, such as B. Works council members or youth representatives. Extraordinary notice of termination is also permitted in fixed-term employment contracts.
When does the extraordinary termination take effect?
Extraordinary termination must always be in writing! A sentence uttered in anger such as "That's enough, I'll quit!" Is therefore not legally effective. That is a good thing, because the situation may be completely different the next day and you would like to withdraw the hastily pronounced termination. The extraordinary termination becomes effective when it is received by the recipient.
An extraordinary termination does not always have to be given without notice. It is also permissible for the terminated person to be granted a so-called social grace period.
Another prerequisite for the effectiveness of an extraordinary termination is that it is pronounced no later than two weeks after the breach of contract (S 626 Paragraph 2 BGB). This period is calculated from the point in time at which the terminating party learned of the incident that was significant for the termination.
If this preclusive period is missed, extraordinary notice of termination is no longer permissible because after two weeks it can be expected that the employment relationship will be maintained until the end of the ordinary notice period. However, exceeding the deadline is essential if the circumstances that are intended to result in the extraordinary termination need to be clarified in more detail.
If the boss gives you an ordinary termination after an extraordinary termination, you can assume that he will waive the extraordinary termination. The same applies if he has forgiven you for the breach of duty. However, if there is a new reason for an extraordinary termination later, your employer may also use the reasons that led to the first extraordinary termination.
If you were initially given an ordinary notice of termination, this must not be reinterpreted as an extraordinary one. Something else only applies if reasons have arisen in the meantime that justify an extraordinary termination.
In principle, a so-called suspicious dismissal, which is given on the mere presumption of a serious breach of contract or criminal offense, without evidence of this being available, is fundamentally not permitted. In such a case, termination is only justified if facts substantiate the suspicion and, due to the given circumstances, the mutual trust of the contracting parties has been lost.
The extraordinary termination can initially take place without giving reasons. However, upon request, the terminated person must be informed immediately in writing of the reason for the termination (Section 626 (2) BGB).
The works or staff council must always be heard before an extraordinary dismissal. If this is neglected, the termination is void once and for all.
When can an employer terminate without notice?
The following breach of duty by an employee can lead to termination without notice:
Persistent refusal to work:Such is the case if an employee consciously and permanently does not want to perform the work assigned to him, although he is obliged to do so. However, it is not sufficient to ignore an instruction once; there must be an intensive refusal - usually after a warning.
Faked incapacity for work:Depending on the individual case, a warning is not even required for termination without notice. It is even enough to have the urgent suspicion that the employee has stolen the certificate of incapacity for work from his doctor. Extraordinary notice of termination may also be permitted if the employee neither presents the employer with the certificate of incapacity for work nor provides any other information despite repeated requests and warnings.
Threat of illness:If the employee threatens to get sick in order to induce the employer to behave in a certain way, e.g. B. the granting of vacation at a certain point in time, this threat is sufficient for a termination. It is not necessary that the incapacity for work actually occurs or that it is documented with a certificate of incapacity for work. In such a case, no warning is required for termination without notice.
Insult to the superior:Not every bad word is enough to justify an extraordinary termination. It must be a gross insult (such as the "Götz quote").
Private phone calls:Häufiges privates Telefonieren im business kann nach Abmahnung zu einer fristlosen Kündigung führen.
Smoking ban violation:If there is an operational smoking ban (e.g. due to the risk of explosion), a violation of this is sufficient for an extraordinary termination. But also in other cases a persistent violation of a smoking ban - after a warning - justify termination without notice.
Unauthorized start of vacation: An employee who takes his vacation without authorization can in principle be terminated without notice. Something different can only apply if judicial help to enforce the holiday entitlement - by way of an injunction - cannot be obtained for actual reasons (e.g. because of a work assignment abroad). Unauthorized vacation extensions are also not permitted. That is why the employer can also terminate the contract without notice if an employee has been sick for several days during his vacation and thinks he can simply "add" these lost vacation days.
When can an employee terminate without notice?
An employee has the right to terminate an existing employment relationship without notice in the following cases:
Violation of the duty of care:For example, if the employer does not grant his employee a justified time off (e.g. to care for the sick child) or if he insists on the employee's fulfillment of the work obligation despite the illness of the employee, the employee is entitled to extraordinary termination.
Wage arrears:If the employer pays the salary late or incompletely several times, the employee may extraordinarily terminate the employment relationship.
Careless suspicion:The frivolous suspicion of an employee, not based on facts, of having committed a criminal act entitles him to terminate the contract without notice.
Sexual harassment:Moral misconduct or sexual harassment by the boss (e.g. touching or repeated obscene remarks) entitle the employee to an extraordinary termination.
Occupational safety violations:If the employer violates applicable occupational health and safety regulations (e.g. excessive exposure to environmental toxins at the workplace), the employee may terminate the employment relationship without notice.
How you can defend yourself against termination without notice
If the Dismissal Protection Act (Dismissal Protection) applies to your employment relationship, you can file a dismissal protection action against an unjustified extraordinary dismissal within three weeks after receipt of the notice of termination at your competent labor court. In the process, the labor court checks whether the extraordinary termination is effective.
If the court comes to the conclusion that the termination was not justified and the relationship of trust between you and your boss has meanwhile been destroyed to such an extent that a continuation of the employment relationship is no longer reasonable, the employment relationship can be terminated against payment of a severance payment.
Termination without notice - important judgments
Refusal to work overtime
If an employee refuses to do an urgent job on Friday afternoon due to private obligations, even though his employer is threatened with considerable damage if the work is not done on time, the employer can issue a notice of termination due to "persistent refusal to work" without prior warning. Companies must be able to rely on the fact that their employees are available for urgent operational needs even after normal working hours.
Hessian LAG - AZ: 9 Sa 386/98
Refusal to submit findings
If a sick employee repeatedly refuses to submit medical reports to the public health officer to check his occupational disability or incapacity for work, this is a gross breach of duty that justifies the employee's dismissal without notice.
BAG, November 6, 1997 - AZ: 2 AZR 801/96
Compensation after false suspicion
If an employer cannot prove the accusation of theft against an employee who has been dismissed without notice in a dismissal protection process, then the latter can demand the termination of the employment relationship in return for payment of a severance payment. In such a case, the employee cannot be expected to continue the "completely broken" employment relationship.
ArbG Frankfurt / Main - AZ: 4 Ca 2483/99