Extraordinary Notice of Cancellation or Instant Dismissal

Definition, Explanation

Apart from the normal cancellation of employment contract, both employer and employee have the opportunity to cancel a job contract by using an extraordinary notice of cancellation. To validate such a cancellation, the canceller has to name an important reason according to § 626 BGB which makes a future job engagement impossible for the canceller. If there is a reason justifying an instant dismissal or not has to be checked individually. The law gives the following evidence:

Cancellation reasons of the employer

Breach of duty by the employee
Causeless refusal to work. This includes frequent tardiness if reminders have already been sent
Deliberate insults, significant discriminations, sometimes xenophobic statements
Assaults
Sexual harassment
Employment cheating
Malpractice such as crooked statements of expenses or thievery
A third party is requiring the dismissal of an employee; otherwise significant economic disadvantages will be the consequence. This is a so-called Dismissal under Pressure
Criminal action during working hours: private utilization of a company vehicle, in spite of a special prohibition. Misuse of control modules, forbidden telephone calls, E-Mails or utilization of the internet
Police reports against the employer which violate the employee’s duty of good faith
Violations of industrial safety regulations if they are associated with great danger. This may include a violation of the smoking ban
Drunkenness, revoked driver’s license, hit-and-run driving of professional drivers if he or she is not applicable in other sectors and agrees with this decision
Unapproved start or extension of vacation
Violation of the obligation of secrecy
Violation of the non-competition clause
Longterm imprisonment
Unapproved side jobs during vacation
Corruption or accepted reception of bribe money

Cancellation reasons for the employee

Heavy violations of industrial safety by the employer
Back wages in spite of demand notes

The following cases are commonly NOT regarded as reasons for an extraordinary dismissal:

Maternity protection (from the beginning of pregnancy until 4 months after birth)
Participation in strikes and labour disputes
Closing of a company, closedown or opening of bankruptcy
HIV-Infection
long-term or frequent illness

The extraordinary dismissal varies from the common dismissal in the cancellation period which is no longer or not completely valid. Another difference might be that a job contract is cancelled even if it is non-redeemable. An example: A dismissal of a non-redeemable employee due to a closedown is extraordinary, but not without notice. The judicial term is an extraordinary cancellation with a phasing out period.

Conditions for a valid extraordinary cancellation:

There is an important reason. This reason is so important that the cancellation period can not be executed
If there is a worker’s council, this council must be heard before the cancellation. Otherwise the cancellation is invalid. The worker’s council has the opportunity to generate a statement within three days. However, unlike with the ordinary cancellation, the council does not have the right of objection
After revelation of the cancellation reason, the dismissal is valid within two weeks
The cancellation has to take place in written form
The letter of cancellation will be received by the cancelled employee within the defined period of time
The cancellation reason can not be included in the letter of cancellation. Exception: Cancellation of an apprenticeship
On request, the employee has to be informed immediately and in written form about the reason for the cancellation
The cancellation must be comparative. This means that the application of a milder consequence is not possible. A milder consequence would be a call to order (Abmahnung) or a dismissal with the option of altered conditions of employment. Before an extraordinary cancellation, at least one call to order has to be given. This is not necessary when it comes to a breach of duty concerning the confidence belt
Before cancelling a severely disabled person, ask for the acceptance at the Equal Employment Opportunity Commission
A member of the worker’s council has a special dismissal protection. They can not be cancelled extraordinarily. Only cancellations due to operational reasons are possible
As an employer, you should inform your employee not only about the extraordinary cancellation, but also about an ordinary cancellation
If these conditions are not given, the extraordinary cancellation is invalid

If there is evidence for significant criminal action, a so-called Cancellation on Suspicion is possible. In this case a hearing of the employee about this issue and apart from other important reasons is obligatory. The right to cancel extraordinarily can, unlike the ordinary dismissal, be limited by contract.

Tips, Checklist

Watch out for calls to order in terms of cancellations without notice
Should you receive an extraordinary cancellation without obvious reason, ask your employer for the reason. He is obliged to give such information to you in written form and immediately
If possible, talk to your worker’s council. He has no right of objection but is able to check the validation of the cancellation
After receiving an extraordinary cancellation, you have the chance to file an action at the labour court within three weeks. To do this, you should hire a lawyer
Even if there is only little evidence that the cancellation is invalid, you should check if you want to take legal action
Even when the court’s judgement says you are being reemployed, this is impossible in most cases due to the disturbed mutual trust. In such cases, lawyers can agree on certain compensation
To avoid difficulties in argumentation, the employer should pronounce a call to order before a cancellation

Last update: 07/07/2010

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