Außerordentliche fristlose Kündigung

Extraordinary termination of the employment relationship without notice by the employer - when are there chances of success for the dismissal protection claim?
The extraordinary termination of the employment contract without notice by the employer is the “sharpest sword” among the conceivable reactions of the employer to breaches of duty by employees. Case law sets correspondingly strict requirements for the effectiveness of an extraordinary termination without notice. For the employee, this in turn means that there are a number of possible starting points for claiming legal protection against an extraordinary dismissal without notice and for filing a dismissal protection claim. What these are will be briefly explained below.

General requirements

According to Section 623 of the German Civil Code (BGB), extraordinary termination without notice by the employer must be in writing like any other termination. The verbal statement “You are dismissed without notice!” does not constitute an effective extraordinary termination.
In addition, extraordinary termination without notice by the employer, like any other termination, is subject to the so-called requirement of certainty. It must therefore be clear and unequivocal from the employer's written declaration (or from the other circumstances in connection with the notice of termination) that the employer wishes to terminate the employment relationship with immediate effect.
Contrary to a common misunderstanding, extraordinary termination without notice does not usually have to be justified in the letter of termination. According to Section 626 Paragraph 2 Sentence 3 of the German Civil Code (BGB), the employee can only request that the reasons for the termination be communicated to him in writing. However, if the employer fails to do this, this does not affect the effectiveness of the termination and there are hardly any other effective sanctions. This means that this regulation is largely meaningless in practice.
An extraordinary termination without notice ends the employment relationship when it is received by the employee, i.e. usually at the time of personal handover or posting in the home mailbox. A retroactive termination of the employment relationship through an extraordinary termination without notice is not possible, even if the employee's breach of duty that triggered the termination occurred some time ago.
The employer's right to extraordinary termination without notice cannot be excluded in the employment contract or in a collective agreement. On the other hand, it is also not possible to specify certain circumstances in the employment contract as effective reasons for extraordinary termination without notice. Even if such a clause is included in the employee's employment contract (example: "The violation of trade and business secrets by the employee entitles the employer to extraordinary termination of the employment relationship without notice"), the effectiveness of the extraordinary termination without notice always depends on the circumstances to assess the individual case.

The exclusion period of Section 626 Paragraph 2 BGB

An important legal restriction on the employer's right to issue an extraordinary termination without notice is the provision of Section 626 Paragraph 2 of the German Civil Code (BGB). This therefore often offers starting points for a successful legal defense of the employee. According to Section 626 Paragraph 2 Sentence 1 BGB, extraordinary termination without notice can only take place within a period of two weeks after the person entitled to terminate has become aware of the facts relevant to the termination. Any extraordinary termination without notice given after this period has expired is ineffective, regardless of how serious and how well provable the employee's actual breach of duty is. Even if the employee can be proven to have a “classic” reason for dismissal without notice, such as fraud, theft or breach of trust, but the employer misses the two-week notice period, the employee’s claim for protection against dismissal will be successful.
Agreements in employment contracts that deviate from Section 626 Paragraph 2 of the German Civil Code (BGB) are invalid.
In practice, it is often difficult to decide when the two-week period in Section 626 (2) BGB begins. The case law of the Federal Labor Court assumes that the exclusion period begins as soon as the person entitled to dismiss has such reliable knowledge of the facts of the dismissal that he can decide whether it is reasonable for him to continue the employment relationship or not. Positive knowledge is always necessary; even grossly negligent ignorance of the facts of the termination does not trigger the exclusion period. If the facts of the case are unclear, the employer may carry out further investigations as long as these are carried out quickly and with the necessary urgency. The employer may also obtain and secure evidence in advance. If the employer gives the employee the opportunity to comment on the accusation of dismissal (so-called hearing), the two-week period usually only begins with the employee's statement, unless the two-week period had already expired (for example because the employer did not investigate quickly enough has).
Particular difficulties arise when determining the start of the deadline in extensive compliance investigations. Current developments in case law indicate that the start of the deadline usually only begins with the presentation of the final report to the person entitled to dismiss (usually management or human resources management). However, if interim reports are prepared and communicated to the person entitled to termination in advance, these can also trigger the start of the deadline.
If the employer does not consider its own investigations to be appropriate, it can also wait for the progress of an investigation or criminal proceedings in the case of criminal acts without the exclusion period starting to run. However, he can only terminate the contract during this process if there is an objective reason for doing so, i.e. the employer has learned new facts or obtained new evidence and believes that it now has sufficient information for termination. If the employer is concerned about the value judgment inherent in a conviction and is therefore waiting for the conclusion of the criminal proceedings, the termination must be given to the employee within two weeks of the employer becoming aware of the conviction.
In order to comply with the two-week period, the extraordinary termination without notice must be received by the employee within two weeks. In particular, what matters is not when the employer mailed a letter of termination, but rather when it is put in the employee's mailbox. A delay beyond the usual postal delivery times is at the employer's risk. However, if the employee does not accept the notice of termination sent by registered letter/return receipt and deliberately does not pick it up from the post office, he may not be able to rely on the expiry of the two-week period.
For employees on maternity or parental leave and for severely disabled employees, extraordinary termination without notice requires the prior consent of an authority. In these cases, the employer must submit the necessary applications to these authorities within two weeks of becoming aware of the circumstances relevant to the termination. If the authority declares the termination to be permissible or consents to the termination, the employer must terminate immediately. Without delay does not mean “immediately”, but at least without any culpable delay. According to case law, three days can be too long.

The important reason of Section 626 Paragraph 1 BGB

The pivotal point of every extraordinary termination without notice by the employer is the so-called “important reason” of Section 626 Paragraph 1 BGB. According to this, an important reason for an extraordinary termination without notice exists if the employer, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract, cannot be expected to continue the employment relationship until the end of the notice period (or until the end of an agreed fixed-term period). .
The wording “taking into account all the circumstances of the individual case” reveals an important principle of the law of extraordinary termination: There are no unconditional (absolute) reasons for termination. The individual case is always decisive. This applies even to extremely serious breaches of contract such as criminal acts. In these cases too, a comprehensive and individual case-specific weighing of interests must always be carried out, which can lead to the employer being able to reasonably be expected to continue the employment relationship until the end of the normal notice period in the specific case, even if the circumstances are fundamentally suitable for extraordinary termination. An extraordinary termination without notice is then ineffective. The aspects to be taken into account in this balancing of interests are not conclusively defined. What is particularly important is the weight and impact of the breach of duty and how long the employment relationship previously existed without any strain. In certain circumstances, maintenance obligations and marital status can also be taken into account. Ultimately, each employment judge carries out this final balancing of interests on his own responsibility. Their outcome can rarely be predicted with certainty. When weighing up interests, the employee often has opportunities to defeat the employer's extraordinary termination without notice.
In addition, a strict principle of proportionality applies to extraordinary termination without notice by the employer. Extraordinary termination is only effective if it represents the inevitable final measure for the employer. All other conceivable means (e.g. warning, transfer, notice of change and ordinary termination) must be exhausted or unreasonable for the employer. What is of particular practical importance is the fundamental requirement of a warning before giving notice of dismissal for behavioral reasons. A prior warning is only unnecessary in exceptional cases if a change in behavior could not be expected in the future even after a warning or if the breach of duty is so serious that it is obviously impossible for the employer to accept it, although this must also be recognizable to the employee. Here too, unforeseen and high hurdles often arise for employers in labor court proceedings, which employees can take advantage of.
However, an employer is never obliged to give the employee paid leave of absence until the end of the normal notice period as a “lighter remedy”.
Behavior outside of work (even criminal offenses) can only constitute an important reason for the extraordinary termination of the employment relationship without notice if it has a concrete negative impact on the employment relationship because it raises doubts about the reliability and suitability of the employee (e.g. criminal conviction of an accountant for theft ).
Having said this, the following circumstances in particular may be suitable “in themselves” to justify an extraordinary termination without notice by the employer, although it should be emphasized again that the effectiveness of an extraordinary termination without notice can only be determined after a comprehensive weighing of interests on a case-by-case basis:

Refusal to work
Insults and slander against the employer or work colleagues
Assault towards the employer or work colleagues
continued violation of a company alcohol ban
Criminal charges against the employer without any prior attempt at internal redress
Corruption and bribery in commercial transactions, demanding and accepting “bribes”
Property crimes against the employer (even for items of low value)
Violation of the contractual non-competition clause by carrying out competitive activities
Prohibited private use of the Internet on a larger scale
deliberate damage to the employer's business and reputation
Working time fraud
mobbing
feigned incapacity for work
sexual harassment in the workplace
repeated unexcused absences
private use of resources
constant unpunctuality
unauthorized self-exemption
Expense fraud
Betrayal of company and business secrets, data protection violations

This list is of course not exhaustive.
Under certain circumstances, the extraordinary termination without notice can be based not only on proven breaches of duty, but also on an urgent suspicion in this regard. However, the prerequisite is always that the employee is heard by the employer beforehand and given the opportunity to comment on the allegations.

Hearing of the works council

According to Section 102 BetrVG, the works council must be consulted before any termination. A termination given without sufficient consultation with the works council is invalid. This also applies to extraordinary termination by the employer without notice. In companies in which there is a works council, the employer must therefore properly consult the works council before issuing an extraordinary termination without notice. In the case of a behavior-related dismissal, which is the norm in the case of extraordinary dismissal without notice, the behavior relevant to the dismissal must be precisely described and any warnings issued and any exculpatory circumstances must be communicated, for example the non-confirmation of a suspicion of theft by a witness or counter statements by the employee to a warning. However, works council hearings are often designed by employers to be too one-sided and then offer points of attack for the employee in the dismissal protection process - even in cases in which the actual accusation of dismissal can hardly be "changed".

Procedural aspects

According to Section 4 KSchG, anyone who has received an extraordinary termination without notice from the employer must file a dismissal protection claim with the labor court within 3 weeks of receipt of the termination notice. If this deadline is missed, the extraordinary termination is considered legally effective (§§ 13, 7 para. 1 KSchG).
In labor court proceedings, the burden of proof for the existence of the important reason lies with the employer. This even applies to the absence of justification that the employee claims substantiatedly. This can pose significant risks for the employer. For example, if an employee is terminated without notice due to an unexcused absence and later claims that he was unfit to work due to illness, the employer bears the burden of proof that this justification is not correct. If the employer terminates an employee without notice because of an insult to a work colleague, and the employee later claims that he was provoked, the employer also bears the burden of proof in this case that there was no provocation. These examples could be continued.
The employer is also responsible for providing evidence to ensure compliance with the two-week deadline set out in Section 626 Paragraph 2 of the German Civil Code (BGB). This can cause significant problems, particularly if investigations into the matter of termination have been carried out for a long time. Exact information is required here as to why further investigations were necessary and exactly what investigations were carried out and when.
An employee, on the other hand, can limit himself (at least initially) to simply denying the allegations of dismissal and compliance with the two-week notice period.

Conclusion

Although it is only in the rarest of cases that an employer will issue an extraordinary dismissal without notice without, at least from their point of view, serious misconduct on the part of the employee, the legal hurdles for the employer in subsequent labor court proceedings are considerable. An employee will therefore usually try to challenge an extraordinary dismissal without notice given to him by filing a dismissal protection claim. On the one hand, the employee has “nothing to lose” since the worst case scenario has already occurred when the extraordinary termination without notice is given. On the other hand, even if there are circumstances that are fundamentally suitable for extraordinary termination without notice, there are still enough starting points to “overturn” the extraordinary termination without notice or at least to reach an amicable arrangement with the employer in the form of termination of the employment relationship on the regular notice date or even against payment of one to find appropriate compensation.