Termination without notice for cause

Under employment law, termination without notice for cause is only issued when employees have violated their employment or contractual obligations in a particularly serious manner. Such extraordinary termination therefore generally requires significant misconduct and is not considered merely because of a single, minor instance of arriving late to work.

But what exactly is a termination for cause without notice? And under what circumstances can an employer issue it? In this article, we’ll address these and other questions.

1. What is a termination for cause?

Behavior-related grounds for termination are one of the three socially justifiable grounds for termination under employment protection law. In addition to termination for cause, these include termination for operational reasons and termination for personal reasons.

1.1 Conduct in breach of duties must be within the employee’s control.

Termination is based on conduct if the employee violates his or her obligations under the employment contract through conduct that he or she can control, and it is no longer reasonable for the employer to continue the employment relationship.

However, if the conduct is not within the employee’s control—as in the case of kleptomania, for example—there is no grounds for termination based on conduct. The same applies to alcohol addiction. In cases of conduct that is not within the employee’s control, however, termination based on personal grounds may be considered.

1.2 Termination for Conduct-Related Reasons

In the case of termination for cause, a breach of contract is sanctioned that makes it no longer reasonable to continue the employment relationship. In addition to the primary obligations, the employment relationship is characterized, among other things, by the employee’s duty of loyalty and the employer’s duty of care.

2. What are grounds for termination for cause?

Reasons for termination based on conduct may exist, for example, in the following cases:

• Failure to perform duties, such as arriving late or leaving the workplace early;
• refusal to work
• Intentional substandard performance, e.g., work that is flawed or very slow;
• personal use of the telephone or internet when expressly prohibited;
• engaging in competitive activities to the detriment
• of the employer Secondary employment that has not been authorized
• Drug or alcohol abuse in the workplace, especially when it endangers others Filing
• complaints against the employer with government agencies or the district lawyer’s office, knowing full well that such actions are unfounded
• Violations of company rules, e.g., smoking despite a ban
• Violations of ancillary obligations under the employment contract
• Time-sheet fraud;
• fraud
• Theft
• Corruption
• Sexual harassment
• Physical assaults against female employers, female coworkers, or female customers Workplace bullying Multiple wage garnishments that significantly exceed the usual extent and entail considerable additional expense for the employer

3. Can a termination for cause be issued without notice?

A termination for cause may be issued as an ordinary termination—and thus in compliance with the statutory notice period—or as an extraordinary termination. In the case of an ordinary termination for cause, it must generally be preceded by a prior written warning for a similar violation; otherwise, the ordinary termination for cause is generally invalid.

In the case of extraordinary termination for cause, the statutory notice period does not have to be observed; it is therefore effective immediately. A prior written warning is generally not required, as the breach of contract is so serious that the employee in question knows for certain—even without a warning—that his or her conduct will not be tolerated.

Although, in theory, all three statutory grounds for termination—conduct-related, personal, and operational—can justify termination without notice, almost all terminations without notice are conduct- related. Particularly in the case of termination for cause, the employee’s misconduct or breach of duty may be so severe that it is justified to terminate the employment relationship immediately and without notice.

3.1 Special Requirements for Conduct-Based Termination Without Notice

However, certain requirements must be met for a termination without notice; without them, such a termination would be unlawful. First, there must be a conduct-related breach of duty that was committed culpably. Since a conduct-related termination must always involve controllable conduct, there must be intent or at least negligence with regard to the breach of duty.

Furthermore, there must be no milder or alternative measure available other than termination without notice. Milder measures may include a transfer, a written warning, a notice of modification, or ordinary termination.

Furthermore, when weighing the interests of both parties, the employer’s interest in the immediate termination of the employment relationship must outweigh the employee’s interest in compliance with the notice period.

3.2 The two-week notice period must be observed in the case of termination without notice

In the case of termination without notice, the employer must comply with a time-related requirement in addition to the other conditions for termination. Pursuant to Section 626(2) of the German Civil Code (BGB), the employer must issue the termination without notice for cause two weeks after becoming aware of the facts justifying termination or the grounds for termination.

However, this period is suspended—and thus interrupted—as long as the employer, for example, is clarifying or investigating the facts of the termination in any way. If the employer is required to consult with the works council prior to termination, this does not suspend the two-week period.

In the case of a so-called ongoing violation (for example, continued unexcused absences), the initial violation is irrelevant for the purpose of the notice period, and its exclusionary effect is suspended.

4. When is the relationship of trust breached?

A conduct-based ground for termination may fall within the realm of trust. This is typically the case when the employee, for example, commits a criminal offense to the detriment of the company. Examples include expense fraud, theft, or time-sheet fraud.

For example, the Federal Labor Court (BAG) upheld the termination without notice for cause against an administrative employee who had consistently clocked in from the parking lot. This resulted in a loss to the employer of 135 minutes, which had been recorded as working time and paid as such. The BAG ruled that this alone constitutes a breach of trust.

5. Is termination without notice possible without a prior warning?

Unlike in the case of ordinary termination for cause, a prior warning is not strictly required for termination without notice. Rather, precisely because of the severity of the breach of contract, a warning is generally not required.

If, on the other hand, the breach of contract is not so serious, termination without notice is not permitted, and a warning is generally required; termination for cause can only occur in the event of a repeat offense of the same nature.

This serves to make it clear to the employee that the behavior will not be tolerated and gives them the opportunity to cease such behavior.

However, in the case of a serious breach of duty or a serious breach of trust—such as the commission of criminal offenses to the detriment of the company—the requirement for a written warning may be waived. The same applies if it is clear from the outset that a written warning will be ineffective. In such cases, termination without notice is also permitted.

6. Am I entitled to unemployment benefits in the event of termination without notice?

Even in the case of a termination without notice for cause, an employee is entitled to unemployment benefits. However, the Employment Agency will impose a 12-week waiting period. This is based on the assumption—particularly in the case of a termination for cause—that the employee was “at fault” for the termination and thus engaged in conduct in violation of the employment contract.

In cases where unemployment was thus caused intentionally or through gross negligence, a waiting period may be imposed pursuant to Section 159(1), Sentence 1, No. 1 of SGB III. This applies in particular when an employee who has been terminated without notice accepts the termination without challenging it through an action for unfair dismissal.

Therefore, in the event of a termination for cause without notice or a termination for cause with notice, you should seek legal advice promptly after the termination and, together with a certified specialist lawyer in employment law, decide whether to file a wrongful termination lawsuit. However, you have only three weeks from the date you receive the termination notice to file a wrongful termination lawsuit, so you should act promptly.

Read more about the claim challenging a dismissal and the three-week deadline:

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