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Fired without notice? It is not that easy

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If you were dismissed without cause, it means you did not engage in any form of major wrongdoing on the job. You could be fired for a variety of reasons, including a downturn in the economy, cost-cutting, poor work performance, firm reorganization, or just a lack of “fit” in the workplace.

In contrast to ordinary termination, a reason for termination is required for extraordinary termination. However, a deadline does not have to be observed. That is why extraordinary termination is often referred to as termination without notice. When examining extraordinary dismissals before the labor court, it often turns out that the dismissal was wrong.

Then extraordinary notice can be given

Exceptional termination as a last resort is permitted if the following points come together.

Important reason

There must be a serious reason for the immediate termination of the employment relationship. The reason must be so important that it is no longer reasonable for the terminating party to even wait for the notice period. If the important reason is missing, the termination is ineffective.

Consideration of the interests of both sides

When assessing whether there is an important reason for termination, the specific interests of both sides must also be adequately taken into account. That means: Relieving circumstances must also be considered. Social considerations matter. Above all, a long employment relationship can mean that an extraordinary termination is not possible after all, despite serious incidents.

A two-week declaration period

Extraordinary termination can only be issued within a two-week notice period in accordance with Section 626 (2) BGB. The period begins as soon as the reason for the termination is known. If the employer has to research the reason for the termination first, the two-week period begins after this clarification has been completed. The letter of termination must have been delivered to the person to whom the termination was made before the deadline. Cancellation letters should be sent as registered mail.

Exceptions

There are also extraordinary terminations that are issued with a period of notice. So they are not without notice. This can be, for example, in the case of an employee who cannot be terminated and who can therefore only be terminated extraordinarily, but with an expiry period (BAG, judgment of June 20, 2013, Az. 2 AZR 379/12).


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Important reasons from the employer’s point of view

If the employer wants to terminate extraordinarily, then he must have a really important reason. Although he does not have to state why he is giving notice in the notice of termination, the employee can demand that the reason for the termination be communicated to him in writing without delay (Section 626 (2) sentence 3 BGB).

Whether and to what extent a certain misconduct justifies extraordinary termination is always a decision on a case-by-case basis. There are no absolute grounds for termination in the law. If the extraordinary dismissal is examined before the labor court, the employer must prove the reasons.

Examples of important reasons for termination from the employer’s point of view

Refusal to work – It is not enough for the employee to simply ignore an instruction from his superior: He must persistently refuse to work. A prior warning is usually necessary. (LAG Hamm, judgment of May 25, 2012, Az. 7 Sa 2/12).

Insulting the employer – This is usually a serious breach of the contractual obligations (BAG, judgment of October 10, 2002, Az. 2 AZR 418/01). The situation is different if the employee made the insult to a third party in a confidential conversation. If the employee insults his boss with an emoticon, he may terminate the contract without notice. In individual cases, however, he must issue a warning beforehand, for example because the employee had worked reliably for years (LAG Baden-Württemberg, judgment of June 22, 2016, Az. 4 Sa 5/16).

Business-damaging statements about the employer on the Internet – LAG Hamm, judgment of March 15, 2013, Az. 13 Sa 6/13.

Fraud, theft and embezzlement to the detriment of the employer (“Emmely case”) – both crimes represent an important reason for termination regardless of the amount of damage. A warning may be required in individual cases. In addition, interests must always be weighed up (BAG, judgment of June 10, 2010, Az. 2 AZR 541/09). After 40 years of unobjectionable employment with the company, this can lead to the accumulation of trust capital that excludes extraordinary termination along with other aspects, such as an immediate confession and the lack of the possibility of ordinary termination (LAG Berlin, judgment of 16 September 2010, Az. 2 Sa 509/10).

Suspicion of a criminal offense – The employer can also terminate the contract for good cause if there is serious suspicion of a criminal offense against an employee or trainee. The fact does not have to be proven – a mere guess is not enough. Before giving notice of termination, the employer must hear the employee concerned (BAG, judgment of February 12, 2015, Az. 6 AZR 845/13

Unauthorized start of vacation – Employees who go on vacation without a vacation permit from their employer can usually be terminated without notice because they persistently refuse to work (BAG, judgment of November 21, 1996, Az. 2 AZR 357/95). Exception: The employee applied for vacation in good time and timely legal protection to enforce his vacation entitlement is not possible (LAG Berlin, judgment of November 26, 2010, Az. 10 Sa 1823/10).

Threatened sick leave – If a healthy employee threatens his employer that he will celebrate sick if he does not get the desired vacation, this threat basically represents an important reason for an extraordinary dismissal. (BAG, judgment of March 12, 2009, Az. 2 AZR 251 / 07).

Sexual harassment of colleagues – BAG, judgment of 09.06.2011, Az. 2 AZR 323/10, LAG Lower Saxony, judgment of 6 December 2013, Az. 6 Sa 391/13.

Bullying – The reason for the extraordinary termination of a superior can be the bullying of a subordinate, whereby – depending on the severity of the individual case – even a warning may be omitted (LAG Thuringia, judgment of February 15, 2001, Az. 5 Sa 102/00).

Competitive activity – If an employee engages in illegal competitive activity, this can be an important reason for his employer to terminate the contract (LAG Hessen, judgment of June 10, 2013, Az. 21 Sa 850/12).

Working time fraud – an employee who fakes his employer worked hours and stamps them incorrectly, for example, can generally be dismissed without notice as a result. This is not only the case with fixed working hours, flextime manipulation can also be an important reason for an extraordinary termination in individual cases. (BAG, judgment of June 9, 2011, Az. 2 AZR 381/10).

This is especially true in cases in which an employee deceives his employer by causing a colleague to use the time clock in his place (BAG, judgment of November 24, 2005, Az. 2 AZR 39/05). A warning may be required beforehand in individual cases (LAG Berlin, judgment of June 13, 2012, Az. 15 Sa 407/12).

Private phone calls – Unauthorized and secret private phone calls made at the employer’s expense are generally suitable for justifying an extraordinary termination (BAG, judgment of March 4, 2004, Az. 2 AZR 147/03).

Private PC, Internet and e-mail use during working hours – a violation of the prohibition of private e-mail traffic issued by the employer justifies the issuance of a behavior-related extraordinary termination – even without a warning, provided that the use was excessive (LAG Niedersachsen, Judgment of May 31, 2010, Az. 12 SA 875/09). If an employee creates so-called pirate copies on a work computer during working hours, the employer may terminate him without notice (BAG, judgment of July 16, 2015, Az. 2 AZR 85/15).

However, the employer must prove the private use. This cannot be done through secretly obtained data using a keylogger (key logger). The installation of such software violates fundamental rights (LAG Hamm, judgment of June 17, 2016, Az. 16 Sa 1711/15).

Deletion of data – If an employee has deleted customer data and correspondence on his work computer so that his employer no longer has access, the employer can extraordinarily terminate the contract without a warning (Hessisches Landesarbeitsgericht, judgment of August 5, 2013, Az. 7 Sa 1060/10) .

Drug Use – If a truck driver uses hard drugs such as crystal meth, the employer may give him extraordinary notice. It does not matter whether he took the drugs before or during working hours (BAG, judgment of October 20, 2016, Az. 6 AZR 471/15).

Important reasons from the point of view of the employee

The employee can also give extraordinary notice. But he also needs an important reason for this. According to the case law, if the salary is not paid on time, he must first warn the employer and demand that the salary be paid on time.

Extraordinary termination due to default of payment by the employer therefore requires a considerable amount of wages arrears and prior warning (s) (BAG, judgment of January 17, 2002, Az. 2 AZR 494/00). This is not necessary if the employer can no longer pay in the context of an impending bankruptcy (LAG Hamm, judgment of March 29, 2006, Az. 2 Sa 1571/05).

Another reason may be repetitive sexual harassment in the workplace. Serious occupational health and safety violations, gross insults and assault are further examples of weighty reasons that entitle the employee to extraordinary termination.

Comprehensive balancing of interests is necessary

If there is an important reason for an extraordinary termination, a weighing of interests must be carried out in each individual case. The severity of the breach of duty on the one hand and the length of service, existing maintenance obligations and the previous structure of the employment relationship on the other hand are weighed up against each other.

So it is quite conceivable that the disruption of the employment relationship will be eliminated and continued employment possible through a transfer to another job or a change notice.

Warning required

An extraordinary termination may only be given as a last resort by the employer or the employee. Before a termination is issued, the other contractual partner must first be informed of the situation contrary to the contract and a warning must be given. A warning is a complaint about the employee’s performance with a simultaneous threat of termination in the event of repetition.

The only exceptions to this are if there is a breach of duty in the area of ​​trust between employer and employee and a reasonable employee could not expect to be warned about his behavior. Such serious breaches of duty exist in particular in the case of criminal offenses, property offenses and denigrations of the employer.

A termination can then still be ineffective

An extraordinary termination can also be ineffective for other reasons.

Hearing of the works council – A notice of termination is generally ineffective if there is a works council and the employer has not heard the employee representative body before the notice of termination was given. The works council must be heard before each termination, including extraordinary termination (Section 102 BetrVG). If the works council has concerns about an extraordinary termination, it must inform the employer immediately in writing, stating the reasons, but no later than within three days (Section 102 (2) sentence 3 BetrVG).

Maternity protection – The employer may not dismiss a pregnant employee because of the Maternity Protection Act (Section 17 MuSchG).

Employees on parental leave – In principle, the company may not terminate the employee during parental leave. This special protection against dismissal begins when the employee has requested parental leave – but no more than eight weeks before the start of parental leave (Section 18 BEEG).

Works council – Even a member of the works council can only be dismissed by the boss with the consent of the works council (Section 103 BetrVG).

No consent – The dismissal of a severely disabled employee is ineffective if the employer has not complied with the statutory formalities required for this. Before giving notice, the employer must obtain the approval of the integration office (Section 174 of Book IX of the Social Code). Since December 30, 2016, the dismissal of a severely disabled person has also been ineffective if the employer did not involve the representative of severely disabled employees (Section 178 (2) SGB IX). This regulation goes back to the new Federal Participation Act.

You should do this when you receive your notice of termination

If you have received an extraordinary termination from your employer without giving a reason for termination, you should request immediate written notification of the reason for termination in accordance with Section 626 (2) sentence 3 of the German Civil Code (BGB). Also, seek immediate assistance from a labor law expert to avoid disadvantages. Anyone who has legal protection insurance with professional legal protection is covered with regard to legal and court costs.

If possible, contact a specialist lawyer for labor law who only represents employee interests. You can read how to find the right lawyer in our guide. The lawyer also clarifies whether your legal protection insurance, if any, will cover the costs.

You have to decide quickly together with your lawyer whether you want to take action against the dismissal or not. The question must be clarified at the latest within three weeks after receipt of the notice of termination (§§ 4 sentence 1, 13 paragraph 1 sentence 2 KSchG). If you miss this deadline for filing a lawsuit, it is irrefutably presumed that there was an important reason for the termination and that the employer complied with the two-week period of Section 626 (2) BGB (Section 7 KSchG).

The aim of your dismissal protection action must be: The labor court declares the dismissal to be ineffective or, by way of a settlement, the extraordinary dismissal becomes a timely operational dismissal. The advantages for you: You will continue to receive your salary during the period of notice, there is no termination date in the certificate that would raise questions for a new application, and you have no blocking period when receiving unemployment benefits.

The most important questions summarized for you

When can extraordinary notice be given?

Exceptional termination is permitted if the following points come together: There must be a serious reason for the immediate termination of the employment relationship. The reason must be so important that it is no longer reasonable for the employer to even wait for the notice period. If the important reason is missing, the termination is ineffective.

What are important reasons from the employer’s point of view for a termination without notice?

Examples of important reasons for termination from the employer’s point of view:

Refusal to work – It is not enough for the employee to simply ignore an instruction from his superior: He must persistently refuse to work. A prior warning is usually necessary.

Threatened sick leave – If a healthy employee threatens his employer that he will celebrate sick leave if he does not get the desired vacation, this threat is basically an important reason for an extraordinary dismissal.

What are the reasons for termination without notice from the employee’s point of view?

The employee can also give extraordinary notice. But he also needs an important reason for this. According to the case law, if the salary is not paid on time, he must first warn the employer and demand that the salary be paid on time.

Is a warning required?

An extraordinary termination may only be given as a last resort by the employer or the employee. Before a termination is issued, the other contractual partner must first be informed of the situation contrary to the contract and a warning must be given. A warning is a complaint about the employee’s performance with a simultaneous threat of termination in the event of repetition.

When can a termination be ineffective?

An extraordinary termination can be ineffective for several reasons.

Maternity protection – the employer is not allowed to dismiss a pregnant employee because of the Maternity Protection Act).

Hearing of the works council – A notice of termination is generally ineffective if there is a works council and the employer has not heard the employee representative body before the notice of termination was given. The works council must be heard before any dismissal, including extraordinary dismissals.

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Michelle Halterman
USA, China, South Africa and now Munich - Michelle has come a long way in the world. She is an outdoor person and loves to be in nature with friends and on her mountain bike. Or she meets up with friends for pasta, vino, cappaccino & Co.
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