In addition to the ordinary termination of an employment contract in compliance with the notice period, there is also the option of termination without notice if the continuation of the employment relationship is no longer reasonable in good faith. Termination without notice is an emergency valve for special cases. The following situations in particular may be considered as important reasons for dismissal without notice:
- If the employee commits an offense against the employer or other employees, the case is usually clear. Even minor offenses such as petty theft or falsifying work reports are sufficient for dismissal without notice. Offenses outside the workplace may also be sufficient under certain circumstances, provided the misconduct is so serious that it destroys trust in the employee in general or damages the company's reputation.
- A serious breach of fiduciary duty, for example working for the competition or accepting bribes, clearly constitutes good cause for termination without notice.
- In the case of minor breaches of contractual obligations such as being late, failing to comply with instructions or refusing to work reasonable overtime, a single or occasional breach is generally not sufficient. Court practice often even requires a prior specific warning in which the consequences of repeated misconduct are clearly pointed out. The overall circumstances of the individual case must always be taken into account. Dismissal without notice that is only pronounced due to poor performance is practically always inadmissible. And, of course, absence from work through no fault of your own, for example due to illness, should never lead to dismissal without notice.
- The accompanying circumstances are also important in the case of verbal abuse. According to the Federal Supreme Court, a "You can take it easy on me" directed at the boss in the presence of other employees was already sufficient for termination without notice. In another case, on the other hand, calling the boss an "asshole" was not enough because he had provoked the tense situation himself by behaving in breach of contract.
If there is an important reason that has destroyed trust in the employee, the termination without notice must be pronounced immediately. By waiting, you prove that it is still reasonable to continue the employment relationship. However, as long as the employee's misconduct is not clearly established, dismissal without notice should not be carried out prematurely. If the employee's alleged misconduct cannot later be proven, the dismissal is unjustified without notice and the dismissed employee can sue for the salary for the ordinary notice period as well as additional compensation of up to six months' salary. If the circumstances are unclear, it is therefore better to opt for ordinary dismissal. This can be combined with a leave of absence if the employee's work performance is no longer desired.
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Book tipLabor Law: From the Contract to TerminationThe need to find out about your rights in the workplace is growing. After all, those who know their rights are better able to assert themselves on the job market today. From negotiating wages, concluding contracts, working hours, special employment relationships such as working from home, to dismissal and references: the Beobachter employment law specialist provides expert answers to all questions.
10th edition 2009,
Beobachter-Buchverlag,
ISBN 978-3-85569-412-9,
272 pages, paperback, 36 Fr.