The most important things at a glance:
- In behavioral termination, the ground for termination lies in the employee's behavior.
- Generally, a warning is required before a conduct-related termination
- A lawsuit challenging a termination for behavioral reasons is possible. However, the three-week period after receiving the termination notice must be strictly observed.
Note: The term „employee“ below includes all genders (m/f/d) and is used for improved readability..
What is a termination for cause?
In contrast to Personal termination, in which the reason for termination lies with the employee, refers to misconduct by the employee in the case of a conduct-related termination. The employee has therefore violated a duty from their employment contract.
What is the purpose of a termination for cause?
The purpose of a termination for cause is not to punish the employee for the misconduct that occurred, but to prevent future, similar violations by the employee.
When is a termination for conduct permissible?
In addition to the general requirements for the effectiveness of termination, termination based on conduct imposes further requirements for its effectiveness. These are explained in more detail below.
Prerequisites for termination for cause
Material breach of contract
First, there must be a breach of duty in the employment relationship. The breaches of duty can be divided into three groups:
- Underperformance: This includes, for example, culpably faulty work performance or culpably slow work performance.
- Non-performance: This includes, for example, refusal to work or lateness.
- Breaches of contractual secondary obligations: These include theft, disloyalty, expense fraud, bullying, using a personal mobile phone at work despite a ban, failure to notify of incapacity to work, or insults towards the employer/supervisor.
Faulty action of the employee
After an employee's breach of duty has been established, the employee must also have acted culpably. This is the case if they acted at least negligently. However, a presumption rule applies here. This means that in the specific case, the employee must prove that they not acted culpably.
No milder means
As termination is a drastic measure, the employer must verify whether there is no milder alternative, i.e., a less severe measure that equally prevents a future breach of duty by the employee.
In a specific case, a milder measure could be employment in another position within the company, provided that no future breaches of duty are to be feared in this new position.
Balancing of interests
In the context of a balancing of interests, the employer's interests in termination are weighed against the employee's interests in continued employment.
The following points, for example, speak in favor of the employee:
- Long tenure of employment without prior violation
- Low risk of future breach of duty
- Minor impact of the breach of duty/No damage
- Any severe disability of the employee
- Any maintenance obligations of the employee
Arguments in favor of the employer include the following points:
- Impact of Breach of Duty on Operations
- Persistent non-compliance/disregard of violated regulations
Ineffectiveness of termination for conduct for other reasons
In addition to the requirements for a correct social selection being met, a termination for operational reasons can also fail due to general grounds for invalidity. This is the case, for example, if the works council present in the company was not consulted before the termination was issued, or if the approval of the integration office was not obtained beforehand when terminating a severely disabled employee.
Examples of contractual breaches of employment that can lead to termination for cause
So-called “low performers“
These are employees who perform less compared to their colleagues, meaning they do not work as efficiently. Therefore, the fundamental question here is whether the „poor performance“ stems from the employee's behavior or lies „within the person“ of the employee.
In the first case, termination for cause would apply; in the second case, termination due to personal reasons would apply.
Legal action may be taken if an employee's productivity level falls short of their colleagues' by at least one-third.
However, a distinction must be made: If the employee's underperformance is related to their person, it is not a case of a low performer. This means: if the employee, for example, has an illness, disability, or lacks the appropriate skills, a termination for conduct is not possible, as in these cases there is no refusal to work. The employee in question can cannot perform better. Therefore, dismissals due to conduct for low performers are only possible if the employee can perform better could, but doesn't want to, meaning the behavior is manageable.
Theft
If employees steal company property, it justifies termination for cause. Cases where employees have stolen items of only minor value have gained particular public attention. Bottle deposit receipts are a prime example. The reason for termination for cause lies not in the value of the stolen item, but in the breach of trust towards the employer. However, contrary to earlier case law of the Federal Labor Court (BAG), a warning must also be considered in cases of petty theft.
Sexual harassment in the workplace
In cases of sexual harassment at the workplace, labor courts sometimes even recognize immediate termination. A prior warning is then dispensable in these cases.
Mobbing
Systematic bullying of colleagues also justifies a conduct-related termination according to the case law of the labor courts.
Personal mobile phone use at work
Private use of mobile phones at work can justify termination if the employee neglects their work duties as a result. Often, private use of mobile phones at work is also contractually prohibited, meaning the employee is explicitly violating their employment contract.
So-called „faking illness“
So-called "calling in sick" (Krankfeiern), where employees stay home despite not actually being ill, can justify a termination for misconduct. The same applies if employees, while officially on sick leave, engage in activities that hinder their recovery process.
Expense fraud
The so-called expense fraud, where more hours are recorded than were actually worked, is also grounds for termination due to conduct, including extraordinary termination. In practice, such dismissals often occur with field service employees.
Taking vacation without authorization
Taking vacation time without authorization constitutes a breach of contractual obligations and can lead to termination for cause.
Violations of company operational order
The company's works regulations stipulate rules of conduct for employees within the company. If employees violate these regulations, it can justify termination for cause. Examples include alcohol consumption despite an express prohibition or non-compliance with safety regulations.
Insults/Assaults Against Employees/Supervisors
Repeated Insults, Racist remarks or acts of misconduct against other colleagues, the employer, or other superiors can justify a dismissal for conduct.
Drug abuse and alcohol consumption in the workplace
Drug abuse in the workplace can lead to termination. However, private drug use can also lead to termination for misconduct if the use affects the abilities required during work hours. The same can apply to alcohol.
Is a warning required before termination?
As a general rule, a warning is necessary before issuing a dismissal for conduct-related reasons. This is because the employee's behavior, in contrast to reasons for dismissal based on operational requirements or personal circumstances, controllable The employee is therefore given another chance to change their behavior.
It should be noted that the subsequent termination must relate to the same type of misconduct that was already reprimanded in the warning. Consequently, the employee's misconduct that triggers the termination must be similar to the misconduct previously warned about: In simplified terms, the employee is repeating their misconduct.
The following conditions must be met for an effective warning letter:
- Exact designation and description of the warned behavior, i.e., the breach of duty by the employee, based on date and time
(Hint function) - A clear reprimand for this behavior as a breach of contractual employment duties, with the warning that repeated violations will lead to termination.
Warning function
Requirements for the warning letter
There are no specific formal requirements for a warning. Therefore, an oral warning to the employee is also effective. In practice, however, it is advisable to give the employee a written warning, as this makes it easier to prove that a warning has been issued.
Redundancy of the warning
Exceptionally, a warning may not be necessary. This can be the case in two scenarios.
- It is already apparent in advance that a warning would have no effect on the employee's behavior.
- The employee's misconduct was particularly serious, which can be assumed in areas of trust, for example. This includes, for instance, theft by the employee or fraud.
Exclusion period for conduct-related termination
Particularly noteworthy is that conduct-related termination by the employee results in Disqualification from unemployment benefits can lead. This results from Section 159, Paragraph 1, Number 1 of the Social Code Book III (SGB III). The waiting period then occurs if the employee intentionally or grossly negligently caused the situation of unemployment through their breach of duty. The idea here is that the employee is responsible for the situation of unemployment they created in these cases.
The waiting period will then be at least 12 weeks.
In practice, however, it is possible for the blocking period to be prevented by filing a lawsuit challenging the dismissal. If employees depend on unemployment benefits, it may be advisable to file a lawsuit challenging the conduct-related dismissal.
Options against a conduct-related termination
As already mentioned, employees can also in the case of a conduct-related termination Unfair dismissal lawsuit before the labor court. It is important to note here that this must be done within 3 weeks of receiving the termination notice. Compliance with this deadline is therefore of utmost importance.
Conclusion: Conduct in case of termination for conduct
In the context of termination for cause, a number of complex regulations must be observed. Whether specific behaviors constitute breaches of duty and justify termination for cause must always be determined on a case-by-case basis. There are often new rulings from labor courts that modify previous case law. This makes it increasingly difficult to maintain an overview of the validity of terminations for cause. If you are affected by a termination for cause, it is advisable to seek legal advice from a Certified Specialist in Labor Law to obtain someone who is familiar with current developments and has many years of process experience.