Dismissal for Behavioral Reasons – A Guide

Dismissal for behavioral reasons – Important information for you

Have you received a dismissal for misconduct and are now looking for some initial guidance? You may be feeling a bit unsure because you don't (yet) know what the dismissal means for you legally. Above all, you are interested in whether your employer was actually entitled to dismiss you for misconduct. What you can do about it, and whether you should expect any financial disadvantages. Perhaps you are particularly concerned about the waiting period, but also the question of whether you can still expect severance pay. Lawyer for termination in Hamburg I am at your disposal at any time.

If you're looking for answers to these questions, then this article is for you. Here you'll learn everything you need to know about dismissal for misconduct in your situation. Among other things, you'll learn:

• the effectiveness of dismissal for conduct reasons,
• whether you have to expect a waiting period for unemployment benefits,
• what you can do now and to what extent a dismissal protection suit makes sense and
• whether you are entitled to severance pay despite the dismissal for misconduct.

I warmly recommend that you read this post in its entirety. Based on this, you can then make the best possible decision for your next steps. At the very least, you should read what you can do about the termination. Of course, you can also contact me directly, as Employment law attorney in Hamburg, I will support you with all my expertise in this emotionally stressful situation.

And off we go.

Dismissal for conduct reasons in response to a breach of duty

Once an employee and employer enter into an employment relationship, mutual rights and obligations come into effect. A distinction must be made between primary obligations and secondary obligations. These are as follows for the employee:

The Main obligation is to perform the work as required by the employment contract. A breach of this duty occurs if the employee performs his or her work poorly. A breach of duty is even more likely if he or she fails to show up for work or refuses to perform the assigned tasks.

Typical injuries the Main obligation are:

• Poor work performance
• Refusal to work
• Late arrival at work
• Early termination of work
• Unexcused absence
• Doctor's visits during working hours
• Working time fraud

The Secondary obligations These particularly concern the obligations of loyalty and fidelity to the employer. The duty of confidentiality is also a secondary contractual obligation. Breaches of trustHere, the employee violates his secondary obligation in a particularly clear manner.

An example here is Property crimes to the detriment of the employer or the classic Working time fraud. Typical injuries the Secondary obligations may be:

• assault
• Insults towards superiors and employees
• Disturbance of industrial peace
• Violations of company regulations
• Violation of the non-competition clause
• Property crimes against employers and employees
• Violation of duties in the event of incapacity for work

The employer may, if necessary, respond to a breach of contractual obligations by an employee with a regular dismissal for misconduct. In many situations, however, it must also be considered that the misconduct also operational impact has and other operational impairments are to be expected.

Effectiveness of a dismissal for conduct reasons

It is important to note that not every breach of contractual obligations justifies dismissal of employees for misconduct. Case law examines the social injustice of dismissal for misconduct in three steps:

Existence of a breach of employment contract obligations

An employee must objective and culpable have violated their contractual obligations – either their primary or secondary obligations. However, this alone is not sufficient. According to termination law, ordinary dismissal for misconduct is not a sanction for misconduct. Rather, it is intended to prevent future misconduct by the employee.

In other words: It is not enough that the employer has suffered disadvantages due to the employee's conduct in the past. What is crucial is that the breach of duty also has a negative impact on the future – so-called "Forecasting principle". This means that it must be concluded from an employee's misconduct that he or she will also behave in a similar manner in breach of contract in the future.

However, this forecast is usually not easy to make. To make such a forecast, employers will usually first Disciplinary warning Compared to ordinary dismissal for misconduct, this is not only a milder measure, but also the actual basis for future prognosis.

The warning therefore serves to Objectification of the negative behavioral prognosis.
Federal Labor Court, judgment of November 26, 2009 – 2 AZR 751/08

No avoidability of the misconduct

Now to the second step of the examination: Is the misconduct caused by Transfers or relocations of the employee concerned, the employer must priority arrange.

The Termination is, as already explained, always the last resortIf the breaches of duty are related to the workplace, the employer must, before dismissing the employee, attempt to remedy the breach(es) of duty by Change of job The employee must then initially be re-employed in another position where the misconduct can no longer have a future impact.

There is even case law that requires the employer to before the Termination notice one Notice of change to pronounce.
Federal Labor Court, judgment of 23 January 2014 – 2 AZR 638/13

Balancing of interests to the detriment of the employee

The last step concerns the balancing of interests. Interest of the employee at the Maintaining his job is the Employer’s interest in termination Ordinary dismissal for conduct reasons is only justified if, upon reasonable assessment and balancing the interests of both the employee and the employer, it appears to be justifiable and appropriate.

The question to be asked is whether the employer can still be expected to maintain the employment relationship in the event of misconduct by the employee.
Federal Labor Court, judgment of 27 September 2012 – 2 AZR 811/11

When balancing interests, the following are of particular importance: Aspects a crucial role:

• Functionality of the business or company
• Occurrence of financial loss and amount
• Nature, severity and frequency of breaches of duty
• Degree of fault of the employee
• Previous history of the employment relationship
• Contributory negligence of the employer
• Length of service
• Duration of the undisturbed course of the employment relationship
• Age of the employee and his prospects on the labor market
• Employee's maintenance obligations
• Protection of the workforce
• Securing operational processes

Blocking period in case of dismissal for conduct reasons

In the case of dismissal for conduct reasons, you must Waiting period for unemployment benefit A waiting period is not only imposed if you actively terminate the employment relationship, for example, by resigning or by concluding a termination agreementYou will receive a blocking period after Section 158 paragraph 1 sentence 2 number 1 SGB III usually even if they

“through their conduct contrary to the employment contract, they have given cause for the termination of the employment relationship and have thereby […] brought about unemployment”.

What the blocking period means for you

But what does the blocking period mean for you in detail? First of all, it means that your Entitlement to unemployment benefit is suspended for 12 weeksThis means that you will not receive any payment from the agency during this time. And it gets worse: After Section 148 paragraph 1 number 4 SGB III Your entitlement period will be reduced for the duration of the blocking period, but at least by a quarter.

Suspension period even if there is no breach of duty?

And what if the employer had no reason for dismissal for misconduct? The problem is that the employer in the Employment certificate the Reason for termination The agency's clerk initially bases his or her decision on this – and often imposes a blocking period.

The Employment Agency does not carry out a detailed examination. If you want to receive unemployment benefits from the first day of unemployment, you must Counter the employer's statementIf you can convince the clerk that you did not initiate the termination, you may be able to avoid the suspension period.

How to best avoid a blocking period

The best way to receive unemployment benefits from the first day despite dismissal for misconduct is to Filing a dismissal protection suit. For example, a comparison can be made there:

“The employer no longer maintains the allegations in connection with the dismissal of […] following the discussion at the conciliation hearing.”

Dismissal protection suit against dismissal for conduct reasons

As with any other termination, the same applies to termination for conduct reasons: There is actually only one way to get the termination resolved: by filing an appeal. Dismissal protection suit. You have exactly three weeks from receipt of notice of termination Time. After that, you can no longer take action against the termination.

When it makes sense to sue against a dismissal for misconduct

Even more so than with other forms of termination, you must carefully consider the prospects of success of a lawsuit in the case of a regular termination for conduct-related reasons. While the employee has not directly given cause for termination in the case of a personal termination, and even more so in the case of a dismissal for operational reasons, the situation is different with a dismissal for conduct-related reasons.

Of course, if you have not done anything wrong, the decision is relatively clear: challenge the termination! But even in cases of medium breach of duty are the Chances not badThis is especially true if the employer has previously no warning has spoken.

At serious breaches of duty The decision may be different. In such cases, however, the employer will generally terminate the employment without notice. In these cases, legal action against the dismissal for misconduct is advisable anyway.

Recommendation: Decide based on economic considerations

Ultimately, you must make your decision based on economic considerations. As already shown, dismissal for misconduct often leads to a waiting period for unemployment benefits. It may be advisable for you to seek legal redress. If, in addition, the Allegation of dismissal has no substance has, there is even Prospect of severance payThe same applies if the breach of duty is of moderate severity and the employer has not previously issued a warning.

You can file a wrongful termination claim yourself with the Employment Court's Legal Services Office and conduct the proceedings yourself. However, it is always advisable to consult a specialist employment lawyer.

Of course, this is also a financial decision you have to make. It's easier if you have legal expenses insurance. Even if you don't have legal expenses insurance, hiring one can still be worthwhile. A good lawyer will usually achieve more for you in terms of settlement—and thus practically finances itself.

Severance pay despite dismissal for misconduct?

Since you have read our article “Termination and protection against dismissal” carefully, you already know: A legal There is no entitlement to severance payRather, the severance payment is a voluntary payment by the employer with which he “buys himself out” of the employment relationship.

What influences the amount of severance pay

You also know that the Amount of severance pay one Negotiable The employer will pay more, the

• longer the employment relationship exists,
• worse his chances in the termination process,
• less willingness to continue the employment relationship and
• the greater his desire for an end.

Conversely, the employer no incentive, one high severance payment to pay if he compelling reasons for the termination. If the employer can be confident that his termination will hold up in court, he won't dig deep into his wallet. Why should he?

In the case of dismissal for conduct reasons, there is another emotional aspect This factor influences the amount of severance pay. Unlike, for example, in a dismissal for operational reasons, the employer is citing alleged misconduct on your part. They are convinced, and in my experience, it cannot be denied, that personal sensitivities such as anger and disappointment play a significant role here.

Tip: Severance pay even in the case of dismissal for misconduct

Accordingly, the employer's willingness to pay a (high) severance payment in the case of a dismissal for misconduct tends to be lower. You have to fight harder and sometimes even let the conciliation negotiations fail if the facts underlying the employer's case are demonstrably false. Then you have to do some groundwork and first convince the employer that they are making false assumptions. This takes time – often up to the hearing before the bar.