Extraordinary termination

Extraordinary termination / Außerordentliche Kündigung

March 04, 2021

Extraordinary termination is the extreme case in the termination scenario. It is used when one cannot actually give notice because there is no objective reason within the meaning of section 1 of the German Dismissal Protection Act (KSchG) or the applicable notice period is not observed and, however, it is not reasonable to adhere to the contract for important reasons and therefore a unilateral termination of the employment relationship is essential. In labour law, extraordinary notices of termination can be given by both the employer and the employee. In principle, an extraordinary dismissal is not bound to any notice period and can therefore be declared without notice. However, the dismissing party is free to provide the extraordinary dismissal with an expiry period, but then it must be made clear that it is not an ordinary dismissal.

Extraordinary termination is excluded if the person to be terminated is pregnant or on parental leave, i.e. enjoys the protection of section9 ( 1) Maternity Proception Act (MuSchG) or section 18 (1) sentence 1 Federal Parental Allowance Act (BEEG). In special cases, however, the competent authority may declare the termination permissible in individual cases. In any case, before the termination is pronounced, a corresponding application must be made to the competent authority (in this case, the deadline of section 626 subsection 2 BGB must be observed).

In certain cases, there are additional consent requirements that must be met before the extraordinary termination can be effectively be given. This is the case with the dismissal of a severely disabled person. If a works council exists, its consent is required. The internal data protection officer also enjoys protection against dismissal and extraordinary dismissal.

Good cause

Extraordinary dismissal is only possible for a good cause under section 626 (1) BGB. An important reason exists if the above-described untenable condition exists which makes it unreasonable for the person giving notice to comply with the statutory or contractually agreed notice periods. Such notice of termination must then be given within two weeks after the party wishing to terminate the contract has learned of the unacceptable condition. The examination of whether a good cause justifying extraordinary termination exists is carried out in two steps:

First, it must be examined whether the condition generally constitutes a good cause for extraordinary termination, so that the continuation of the employment relationship until the expiry of the notice period or until any agreed termination (limitation) of the employment relationship is unreasonable. Then a concrete weighing of interests is carried out: Here, all individual circumstances are to be included in the consideration. However, it is not possible to give a conclusive list of reasons that justify extraordinary termination in every case.

As with ordinary dismissal, a distinction can be made between reasons of conduct, personal reasons and reasons relating to the business.

Extraordinary dismissal for personal reasons

Personal reasons are circumstances which lie in the person of the dismissed employee and which are suitable to justify an extraordinary dismissal. Fault is not relevant. This is the case, for example, in the absence of a work permit, in extreme cases of illness, serious underperformance or refusal to work, drunk driving in the case of drivers or similar occupational groups, or a pre-trial detention or custodial sentence. It must always be repeated that there is no exhaustive catalogue of reasons recognised by case law. Each of these circumstances also requires examination in the individual case.

Extraordinary dismissal for behavioural reasons

Extraordinary dismissal for behavioural reasons can always be considered if a person massively violates his or her duties under the employment contract. Such a breach of duty must be persistent, i.e. it must be significant in terms of time. This means that the person deliberately and persistently does not want to perform the assigned work. It is not sufficient that the employer's instructions are ignored occasionally. There must be repeated ignorance of instructions, so that it must be assumed that this will also be the case in the future. However, a breach of contractual obligations also occurs when there is deception about the hours worked. Another area is disturbances of trust due to specific conduct. Accepting bribes and payoffs fall into this category and may constitute grounds for termination without notice. Damage to business and reputation may also justify extraordinary dismissal. The same applies to a breach of the general or a contractually agreed specific non-competition clause.

Criminal acts represent the most extreme conduct that justifies termination without notice. But here, too, not every conduct relevant under criminal law constitutes grounds for extraordinary termination without notice. Insults or false suspicions, property offences, bodily injuries and deliberate false statements in a lawsuit against the employer come into consideration. All conduct must be related to the employer, colleagues or customers in particular. In the case of criminal offences outside the employment relationship, considerable demands must be made on the grounds for dismissal. Termination without notice is always only justified if there are substantial and justified doubts that the person concerned can no longer be regarded as sufficiently reliable and suitable for the performance of work for this reason. The decisive factor is therefore the quality of the criminal offence, whether this has an impact on the contractually owed performance, this also depends in particular on the sphere of activity of the person concerned.

Extraordinary dismissal for operational reasons

In exceptional cases, a cessation of operations may justify extraordinary dismissal. However, this is not the normal case. This is because extraordinary dismissal must always be ulitma ratio. Serious violations of company order can also justify termination without notice, but only after a warning. In such cases, it must be proven in detail that there has been a disturbance of industrial peace or operational safety.

Ultima ratio

As already mentioned several times, extraordinary termination without notice is the last resort to respond to grievances. All available, possible and appropriate milder methods must not be considered due to unreasonableness. The question must always be asked whether the desired goal can be achieved at all with the termination and whether there is a milder method that would achieve the same result. Ordinary termination must always be given priority. A warning is also always to be regarded as the milder method. This means that if the goal can already be achieved with a warning, extraordinary dismissal is generally ruled out. A dismissal for conduct-related reasons without the previous issuing of a warning is only possible in exceptional cases if the continuation of the employment relationship is unreasonable. In this case, a future prognosis is also relevant, which examines whether conclusions can be drawn from past conduct with regard to future conduct, which have an impact on the selection of the appropriate means to deal with this behaviour.

Do you want to issue an extraordinary termination or are you the addressee of a termination without notice? Contact us and we can discuss how we can provide you with legal support in your individual situation