Termination on grounds of conduct

Termination on grounds of conduct / Die Verhaltensbedingte Kündigung im Arbeitsrecht

November 03, 2023

Within the scope of application of section 1 KSchG, a dismissal may be justified as a termination for reasons of conduct. In the case of dismissal for reasons of conduct, the employee must have committed a culpable violation of his/her duties under the employment contract.

Breach of contractual obligations

The employee must first have violated an obligation from the employment contract. Both the breach of a primary obligation and the breach of a secondary obligation can be relevant for termination.

Breach of primary obligations

The main obligation of the employee in the employment contract is to provide the service owed under the contract. In an employment contract, this will be the provision of services. A breach of this primary obligation occurs when the employee does not provide his work performance for no reason or performs his/her duties poorly.

A performance not in accordance with a primary obligation for example is the persistent refusal to work, unauthorized sick leave or unauthorized taking ofvacation. Frequent lateness also constitutes non-performance.

Poor performance on the part of the employee exists, for example, if the quality of the service provided falls short of what the employer could expect from the employee according to his/her personal and subjective capacity.

Breach of secondary duties

While the primary duty means the duty to perform work, secondary duties include the conduct of the employee "alongside" the primary duty, i.e. which means the behavior which is necessary in order to fulfill the primary duty.

A violation of secondary duties under the employment contract is, for example, the prohibited consumption of alcohol during working hours. It is important to realise here that the consumption of alcohol does not need to have any negative effects on the main performance obligation, as this would already be a breach of a primary obligation in the form of poor performance.

Insults, threats and assaults against the employer himself/herself, but also against the employer's colleagues or customers, are "classic" breaches of secondary obligations. Other examples of breaches of secondary duties are the betrayal of trade or business secrets, the exercise of prohibited competitive activities and the violation of a contractual non-competition clause. Particularly relevant in practice are criminal offences committed by the employee to the disadvantage of the employer, such as theft of equipment or embezzlement.

Unlike in the case of extraordinary termination, the standard exclusion period of two weeks under section 626 of the German Civil Code does not apply in the case of termination for reasons of conduct (ordinary termination).

Reproachable breach of duty

As a rule, a dismissal for conduct is only justified if the violation of the contractual obligation is reproachable, i.e. the employee can be accused of fault within the meaning of section 276 of the German Civil Code (BGB).

Negative future forecast

However, the past (culpable) conduct of the employee alone does not (yet) justify dismissal for conduct-related reasons. Rather, a (negative) prognosis for the future in the form of a risk of repetition is also important here. However, the past is to be used as the basis for the prognosis.

For this reason, a warning is usually required before a dismissal due to misconduct can be issued. The warning is an actual declaration by the employer, by which he/she makes it clear to the employee that the behaviour contrary to his/her duties will no longer be tolerated. A warning is already issued if the employer points out to the employee sufficiently clear deficiencies in performance and threatens consequences under labour law in the event of a repetition. In this respect, a warning contains an alert as well as an announcement of consequences for further misconduct.

On the one hand, the warning provides the employer with a sufficient basis for the future prognosis. On this basis the employee can assume that even after a warning following the breach of duty, the employee will not cease the reproachable conduct in the future. On the other hand, the warning is a final warning for the employee, because it can be assumed that the employee, who has been informed of the consequence of his/her behaviour (the dismissal) by means of a warning, will adjust his/her behaviour accordingly or will become aware of the misconduct for the first time.

Only in individual cases of particularly serious breaches of duty or if a change in behaviour is not to be expected in the future is a warning not required before the notice of termination is issued.

The warning is not bound to a certain form, it can therefore be declared not only in writing but also orally, whereby it is recommended for evidentiary purposes to declare the warning in writing. Even an invalid dismissal, e.g. because no warning was given before the dismissal, can be considered a sufficient warning, because the employee was also warned in this case and the consequences of the behaviour were pointed out.

Weighing up interests

In the last step, the conflicting interests must also be weighed up in the case of dismissal for reasons of conduct. From the employer's point of view, the intensity and persistence of the breach of duty as well as the effects of the breach of duty on the operational process must be taken into account. From the employee's point of view, the employer's "complicity" in the breach of duty due to unclear work instructions or, for example, a deliberate overworking of the employee may have to be taken into account.