11. Jan 18

GRP Rainer Rechtsanwälte: Assessing the grounds for dismissal with immediate effect

Exceptional notice of dismissal with immediate effect needs to be well prepared if it is to be issued effectively. To this end, it needs to be assessed whether sufficient grounds for dismissal exist.

Employers can only issue exceptional notice of dismissal with immediate effect if there is good cause for doing so. We at the commercial law firm GRP Rainer Rechtsanwälte note that the grounds need to be sufficiently serious such that it would no longer be reasonable for the employer to be expected to continue the employment relationship, even until the next possible due termination date. That is why assessing the grounds for dismissal ought to have priority prior to issuing notice of dismissal.

In order for notice of dismissal with immediate effect to be issued effectively various conditions need to be met: The employee must have severely breached his obligations pursuant to his employment contract. The violation needs to have significant enough that it is no longer reasonable to expect the employer to continue the employment relationship. Moreover, the violation has to have been intentionally or at least negligently committed. It also needs to be examined whether a less severe measure, e.g. ordinary notice of dismissal or a written warning, would be sufficient to prevent further breaches of duty on the part of the employee. Furthermore, notice of dismissal must be issued within two weeks of the employer becoming aware of the grounds for dismissal. Ultimately, the interests of the contractual parties in immediately terminating or continuing the employment relationship need to be weighed up. The employer must be able to make the case why its interest in terminating the employment relationship with immediate effect should take precedence. Exceptional notice of dismissal with immediate effect therefore needs to be properly justified.

Good cause for issuing exceptional notice of dismissal may exist, for instance, if the employee fails to carry out the duties he owes pursuant to his employment contract or is guilty of serious misconduct vis-à-vis his superiors or colleagues, e.g. in the form of insults or even physical assault. These kinds of breaches of duty may result in it no longer being reasonable to expect the employer to continue the employment relationship. That being said, it is ultimately decided on a case-by-case basis whether notice of dismissal with immediate effect has been issued effectively.

Lawyers who are experienced in the field of employment law can advise employers on issues pertaining to the workplace should legal disputes arise.

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