Reasons for dismissal under German labour law

The reasons for a termination are divided in the following areas:

Grounds for dismissal: Extraordinary and immediate termination: Ordinary termination with period of notice
Notice of termination for reasons of conduct Special reasons are required With previous warnings
Dismissal on personal grounds With no warnings
Forced redundancies Operational circumstances are required

Notice of termination for reasons of conduct

Notices of termination for reasons of conduct are the result of employee’s misconduct. In the event of a breaching of the rules, the employer is first entitled to warn the employee. After repeated warnings, if the situation does not change, there are enough grounds for a dismissal.

As “misconduct” is intended:• Suspension from work taken without permission of the employer;• Failure to comply with operational smoking and alcohol bans;• Criticism to employers and superiors;• Unexcused absence;• Unpunctuality;• Calling sick and working elsewhere.

Did you know? An employee, who is proven to behave against the rules, must pay the estimated “detective” costs to him.

Dismissal on personal grounds

Dismissal on personal grounds depends on facts related with the person of the employee. These imply: • Lack of eligibility/qualification of the employee;• Lack of work permit;• Foreign military service of more than two months;• Serving of a custodial sentence;• Sickness/Illness of the employee:- Long-lasting disease- Frequent short-term diseases- Permanent incapacity for work- Performance reduction

Forced redundancies

Forced redundancies terminations are triggered by changes in the company:• In-house circumstances- Rationalization measures- Discontinuation or restriction of production• External conditions- Lack/shortage of orders- Decline in salesIf, despite the circumstances, the employer has the chance to take the employee to another place/area of the company, he may not terminate the contract.

When selecting the person to be dismissed, the employer must make a “social selection”(soziale Auswahl in German). The legislator requires that the termination is “socially justified”. Terminations that are contrary to the principle of good faith or are contrary to the law are ineffective. A forced redundancies termination is socially unjustified, if the employer in the selection of the employees to be dismissed: • is a senior (long period of employment),• is older• has maintenance obligations (severe disability or pregnancy).

Reasons for an extraordinary termination

There must be a special reason for an extraordinary termination. Here are some examples.

Reasons of extraordinary termination from the employer: 

  • Unjustified work-refusal
  • Xenophobic comments
  • Gross affront
  • Infectious, continuous or simulated illness
  • Sexual harassments or moral misconduct
  • Offences such expenses-account abuse or misappropriation of company funds
  • Willful bodily injury of colleagues, clients or superiors
  • Alcoholism
  • Taking unauthorized days off
  • False calculation of the working hours
  • Private phone-calls (after several warnings, quick phone-calls are allowed)
  • Surfing the net at workplace [See: Private Surfing at the workplace]
  • In case of suspicion of a serious job-related misconduct or a criminal offense which has a negative effect on the employment relationship.

Reasons of extraordinary termination from the employee: 

  • Arrears of wages (despite repeated warning)
  • Infringement of the contract, such as non-payment of agreed relocation costs
  • Reckless suspicion of the employer
  • Employment protection violations
  • If the employer is not able to provide the employee with a job with little physical activity despite illness

Warning letter under labour law

In sport, the referee shows yellow and red cards to alert the players of their misconduct. “If you do not follow the rules, you are out! “ A similar system has been created also in the legal world, and that is represented by the “warnings”. A warning letter is similar to a yellow card.

A warning is therefore to point out wrong behaviours or bad performances and eventual warn of dismissal.What many do not know, is that warnings are often incorrectly formulated and for this reason legally vulnerable!If you receive a warning, immediately call an attorney! What is to be observed in the case of a warning?

Is the reason for warning missing?

A warning is only a warning when it is explicitly said what is happened, what is wrong with the employee´s behaviour etc. A mere description of the situation is inadequate and insufficient. For instance, in case of a smoking ban: if the employer writes that the employee smokes in his office, this is not yet considered a warning for misconduct. Only when it is expressly stated in the warning that the employee violates the rules, it can be considered a warning.

Only bad behaviours warnings

A dismissal may have behavioural, personal or business-related reasons, but can only be cautiously justified. The admonition may then only express a decree of order which is conditional on conduct. A special reason is required for extraordinary termination. This regulation is valid within the Employment Protection Legislation.

Only authorized persons are allowed to dismiss other employees

Both employers and employees can issue letters of warning. On the employer’s side, only authorized and qualified persons, including specialist and service supervisors, can issue warnings.

Warning topic =Reason for termination?

A letter of termination can be issued only after two letters of warning. The reason for dismissal has to be connected with the reason of warning. For instance, if an employee has been warned for alcohol consumption at work/alcoholism, this latter cannot be dismissed for „unpunctuality“.

Communication of dismissal

The employer must explicitly announce the termination of the contract. If he does not do so, the warning is not legally valid and thus the termination is void. Formulation example: “If you violate an obligation from the employment contract again, we shall take further measures which may lead to a termination of the employment relationship.” 

The warning has to be understandable:

It is important that the person making the announcement/writing the warning makes it clear to the person concerned that this latter´s behaviour needs to change. For example: if the employees are foreigners, the person in charge to give the information has to make sure to reach to the employees even if there are communication/language-difficulties.

There are no limits to the number of warnings that could be sent /received. The nature of the company, the nature and extent of the breach of duty, the position of the person concerned within the company or the consequences of the misconduct will influence the decision.

Form and Content of the Warning

The person in charge of writing and issuing the warning has to describe the behaviour and list exactly which rules have been broken by the person receiving the warning. He must clearly express what is wrong with the behaviour of the person warned.The warning can be given verbally. For reasons of evidence, however, a written warning is always recommendable.It is important to enclose evidence of the misconduct. If these are missing, the warning is doubtful.

 Removal of a warning from the personnel records

The admonished person is entitled to remove the warning from his personal file in the following cases:• If the warning has lost its effect- The person concerned has been transferred to another work area- The warning is so old that lost its effectiveness• No further misconducts occurred• It is a false or unlawful warningIf the employer is not willing to remove the warning, the person concerned may file a legal action to remedy the expulsion from his personnel records.Statistically, you have really good chances with a lawsuit to remove a warning from your personnel records.

Contact an attorney as soon as possible! We are here for you!