The topic of termination is multifaceted. What types exist, when do I have protection against termination, what must I observe and when how, where can I find information about the deadlines. I will try to address this topic in this article.
In principle, employees are protected by the Protection Against Dismissal Act from dismissals that are socially unjustified. This unstable protection against dismissal applies when one has worked in the company for more than 6 months without interruption and the company employs more than 10 employees.
In termination law, there are various types of termination possibilities, which also have different prerequisites to be legally effective.
Types of Termination
In my article Termination , I already mentioned 4 types of termination forms. However, ultimately there are only 3 different types that labor law recognizes.
- Ordinary termination
- Extraordinary termination
- Modification termination
The aforementioned 3 forms of termination can be pronounced for various reasons. In the Protection Against Dismissal Act , ordinary/modification grounds for dismissal, operational grounds for dismissal, conduct-based grounds for dismissal, and personal grounds for dismissal are recognized.
Ordinary Termination
An ordinary termination denotes the unilateral termination of the employment relationship, either by the employer or the employee. Different rules apply to both parties, however, employers and employees can terminate with notice without stating reasons.
In principle, a termination, regardless of which side, must be in writing. Just calling into the office saying “I’m quitting” / “You’re fired” is not enough. Both parties must also observe the statutory notice periods § 622 BGB , unless a collective agreement or employment contract stipulates something else.
Operational Termination
The basics for an operational termination are laid down in § 1 KSchG . One speaks of such a form of termination when neither the person to be dismissed is the reason, nor can a reason be found in the behavior of this person. By the decision to pronounce an operational termination, the number of employees must permanently decrease. As an example for this, one can mention the elimination of XX positions in a company.
Conduct-based Termination
One speaks of a conduct-based termination whenever an employee is accused of a breach of duty from their employment relationship. For such a termination to be pronounced, the behavior of the employee must be controllable and reproachable.
Here are a few examples of what can be designated as breaches of work duties:
- Lateness, leaving the workplace too early, refusal to work, or simply not showing up for work.
- Violation of company rules: e.g., intrusive behavior towards colleagues that goes so far that they threaten termination if the respective employee remains in the company.
- Theft.
- Underperformance: In German: If you know that you are slow, you must / can make yourself faster.
- Sexual harassment.
- Insults of colleagues / employer.
Personal Termination
In this case, the termination comes from the employer. For a personal termination, unlike for a conduct-based termination, no culpable behavior/breach of duty by the employee must exist.
Rather, a personal termination takes place when the personal performance/abilities of the employee do not permanently suffice to fulfill the contractual work duties.
A negative health prognosis after a long illness can be a reason for a personal termination. In general, the Protection Against Dismissal Act prohibits an immediate dismissal of the employee in case of illness. If an employee is to be dismissed due to the aforementioned negative health prognosis, the statutory/contractually agreed notice periods must be observed. Just throwing someone out is not allowed. However, one can be released for the duration of the notice period. A simulant, on the other hand, can be dismissed immediately. This then falls under a conduct-based termination again.
Finally: The Extraordinary Immediate Termination
In the case of an immediate termination, the employee must have already made a mess and grossly negligently violated their employment contract duties. I mentioned theft above under conduct-based termination, but that is also a reason for an immediate termination.
