23. Mar 17

Exceptional notice terminating the employment relationship for good cause

Employers that wish to issue an employee with exceptional notice of dismissal need to be able to cite good cause for this action. Otherwise, the notice of dismissal is generally ineffective.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Unlike in the case of ordinary notice of dismissal, exceptional notice of dismissal can normally be issued without having to observe notice periods. Having said that, there needs to be good cause to justify exceptional notice of dismissal with immediate effect. Whether the labour courts approve a notice of dismissal is, however, a decision that is always taken on a case-by-case basis.

From the employer’s perspective, good cause justifying exceptional notice of dismissal relates to the employee’s conduct in most cases. This could be a breach of duty on the part of the employee, for instance because he fails to fulfil his obligations as set out in the employment contract and owes it to the employer to perform his work. That being said, the justification for dismissal can also pertain to the employee’s social behaviour vis-à-vis his colleagues and superiors, e.g. if matters were to come to blows or serious insults were dealt out. The grounds justifying dismissal must in each case be serious enough that the employer can no longer be expected to continue the employment relationship, even until the expiry of the ordinary notice period.

In a lot of cases, the labour courts have the final word regarding whether exceptional notice of dismissal has been issued effectively. They assess whether there is good cause justifying dismissal and weigh up the interests of both sides. Factors such as the duration of the employment relationship, social factors as well as mitigating circumstances form part of the assessment. As such, it is always ultimately determined on a case-by-case basis whether the exceptional notice of dismissal was issued effectively or whether the employer could have resorted to more lenient measures. Even if there is a serious reason for dismissal, exceptional notice of dismissal may nonetheless be ineffective.

That is why employers should always be in a position to properly prepare and justify exceptional notice of dismissal. In many cases, it can be helpful to first draw the employee’s attention to his breaches of duties and issue a formal written warning. The employer needs to issue exceptional notice of dismissal two weeks after becoming aware of the good cause justifying dismissal.

Lawyers who are experienced in the field of employment law can advise employers on matters concerning dismissal as well as in relation to other legal issues.

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