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:<\/p>\n\n\n\n
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- the effectiveness of dismissal for conduct reasons,<\/li>\n\n\n\n
- whether you have to expect a waiting period for unemployment benefits,<\/li>\n\n\n\n
- what you can do now and to what extent a dismissal protection suit makes sense and<\/li>\n\n\n\n
- whether you are entitled to severance pay despite the dismissal for misconduct.<\/li>\n<\/ul>\n\n\n\n
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<\/a>, I will support you with all my expertise in this emotionally stressful situation.<\/p>\n\n\n\n
And off we go.<\/p>\n\n\n\n
General information on termination and protection against dismissal can be found here<\/a><\/div>\n\n\n\n\n\nHave you received a notice of termination? We will fully support you in your termination process.<\/p>Yes, I need a lawyer for dismissal protection<\/a>\n <\/div>\n<\/div>\n\n\n\n
\nTable of contents<\/h3>\n
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- Dismissal for conduct reasons in response to a breach of duty<\/a><\/li>\n
- Effectiveness of a dismissal for conduct reasons<\/a><\/li>\n
- Blocking period in case of dismissal for conduct reasons<\/a><\/li>\n
- Dismissal protection suit against dismissal for conduct reasons<\/a><\/li>\n
- Severance pay despite dismissal for misconduct?<\/a><\/li>\n<\/ol>\n<\/div>\n\n\n\n
Dismissal for conduct reasons in response to a breach of duty<\/h2>\n\n\n\n
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:<\/p>\n\n\n\n
The Main obligation<\/strong> 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. <\/p>\n\n\n\n
Typical injuries<\/strong> the Main obligation <\/strong>are:<\/p>\n\n\n\n
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- Poor work performance<\/li>\n\n\n\n
- Refusal to work<\/li>\n\n\n\n
- Late arrival at work<\/li>\n\n\n\n
- Early termination of work<\/li>\n\n\n\n
- Unexcused absence<\/li>\n\n\n\n
- Doctor's visits during working hours<\/li>\n\n\n\n
- Working time fraud<\/li>\n<\/ul>\n\n\n\n
The Secondary obligations<\/strong> These particularly concern the obligations of loyalty and fidelity to the employer. The duty of confidentiality is also a secondary contractual obligation. Breaches of trust<\/strong>Here, the employee violates his secondary obligation in a particularly clear manner. <\/p>\n\n\n\n
An example here is Property crimes <\/strong>to the detriment of the employer or the classic Working time fraud<\/strong>. Typical injuries<\/strong> the Secondary obligations<\/strong> may be:<\/p>\n\n\n\n
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- assault<\/li>\n\n\n\n
- Insults towards superiors and employees<\/li>\n\n\n\n
- Disturbance of industrial peace<\/li>\n\n\n\n
- Violations of company regulations<\/li>\n\n\n\n
- Violation of the non-competition clause<\/li>\n\n\n\n
- Property crimes against employers and employees<\/li>\n\n\n\n
- Violation of duties in the event of incapacity for work<\/li>\n<\/ul>\n\n\n\n
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<\/strong> has and other operational impairments<\/strong> are to be expected.<\/p>\n\n\n\n
\nReceived dismissal for misconduct? Let us check your chances.<\/span><\/h3>\n
An incorrect reason for termination can cost you money.<\/strong><\/p>\n
Our experienced lawyers analyze your situation and advocate for your interests \u2013 whether that means continued employment or severance pay.<\/em><\/p>\n
\n \n <\/i> Call now\n <\/a>\n \n <\/i> Free initial assessment\n <\/a>\n <\/div>\n<\/div>\n\n\n\nEffectiveness of a dismissal for conduct reasons<\/h2>\n\n\n\n
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<\/strong>:<\/p>\n\n\n\n
Existence of a breach of employment contract obligations<\/h3>\n\n\n\n
An employee must objective and culpable<\/strong> have violated their contractual obligations \u2013 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. <\/p>\n\n\n\n
In other words:<\/strong> 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 \u2013 so-called "Forecasting principle<\/strong>". 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. <\/p>\n\n\n\n
However, this forecast is usually not easy to make. To make such a forecast, employers will usually first Disciplinary warning <\/strong>Compared to ordinary dismissal for misconduct, this is not only a milder measure, but also the actual basis for future prognosis.<\/p>\n\n\n\n
Example: An employee has been consistently late to work for the past six months and has already been warned three times for this. This caused significant disruption to the employer's operations. If the employee were to be late again, the prognosis, based on the previous warnings, would be that she would continue to be late to work in the future.<\/em><\/div>\n\n\n\nThe warning therefore serves to Objectification of the negative behavioral prognosis<\/strong>.
Federal Labor Court, judgment of November 26, 2009 \u2013 2 AZR 751\/08<\/a><\/p>\n\n\n\nNo avoidability of the misconduct<\/h3>\n\n\n\n
Now to the second step of the examination: Is the misconduct caused by Transfers or relocations<\/strong> of the employee concerned, the employer must priority<\/strong> arrange. <\/p>\n\n\n\n
The Termination<\/strong> is, as already explained, always the last resort<\/strong>If 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<\/strong> The employee must then initially be re-employed in another position where the misconduct can no longer have a future impact. <\/p>\n\n\n\n
There is even case law that requires the employer to before <\/strong>the Termination notice <\/strong>one Notice of change <\/strong>to pronounce.
Federal Labor Court, judgment of 23 January 2014 \u2013 2 AZR 638\/13<\/a><\/p>\n\n\n\nExample: Employee C repeatedly clashes with employee G. C repeatedly uses nasty insults that impact operational processes and the working atmosphere. However, C's employment contract stipulates that she can only be deployed in the editorial department in Hamburg. In this case, the employer would be obligated\u2014after issuing a prior warning\u2014to transfer employee C to the editorial department in Schleswig-Holstein by way of a change of contract before issuing a termination notice.<\/em><\/div>\n\n\n\nBalancing of interests to the detriment of the employee<\/h3>\n\n\n\n
The last step concerns the balancing of interests. Interest of the employee <\/strong>at the Maintaining his job<\/strong> is the Employer\u2019s interest in termination <\/strong>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. <\/p>\n\n\n\n
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 \u2013 2 AZR 811\/11<\/a><\/p>\n\n\n\nWhen balancing interests, the following are of particular importance: Aspects<\/strong> a crucial role:<\/p>\n\n\n\n
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- Functionality of the business or company<\/li>\n\n\n\n
- Occurrence of financial loss and amount<\/li>\n\n\n\n
- Nature, severity and frequency of breaches of duty<\/li>\n\n\n\n
- Degree of fault of the employee<\/li>\n\n\n\n
- Previous history of the employment relationship<\/li>\n\n\n\n
- Contributory negligence of the employer<\/li>\n\n\n\n
- Length of service<\/li>\n\n\n\n
- Duration of the undisturbed course of the employment relationship<\/li>\n\n\n\n
- Age of the employee and his prospects on the labor market<\/li>\n\n\n\n
- Employee's maintenance obligations<\/li>\n\n\n\n
- Protection of the workforce<\/li>\n\n\n\n
- Securing operational processes<\/li>\n<\/ul>\n\n\n\n
Blocking period in case of dismissal for conduct reasons<\/h2>\n\n\n\n
In the case of dismissal for conduct reasons, you must Waiting period for unemployment benefit<\/strong> A waiting period is not only imposed if you actively terminate the employment relationship, for example, by resigning or by concluding a termination agreement<\/a>You will receive a blocking period after Section 158 paragraph 1 sentence 2 number 1 SGB III<\/a> usually even if they<\/p>\n\n\n\n
\u201cthrough their conduct contrary to the employment contract, they have given cause for the termination of the employment relationship and have thereby [\u2026] brought about unemployment\u201d<\/em>.<\/p>\n\n\n\n
What the blocking period means for you<\/h3>\n\n\n\n
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 weeks<\/strong>This 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<\/a> Your entitlement period will be reduced for the duration of the blocking period, but at least by a quarter.<\/p>\n\n\n\n
Example: You are generally entitled to 12 months of unemployment benefits. Due to a waiting period, you will not receive unemployment benefits for the first 12 weeks of unemployment. In addition, after 12 weeks, you will only receive unemployment benefits for 9 months instead of 12.<\/em><\/div>\n\n\n\nSuspension period even if there is no breach of duty?<\/h3>\n\n\n\n
And what if the employer had no reason for dismissal for misconduct? The problem is that the employer in the Employment certificate<\/strong> the Reason for termination <\/strong>The agency's clerk initially bases his or her decision on this \u2013 and often imposes a blocking period.<\/p>\n\n\n\n
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 statement<\/strong>If you can convince the clerk that you did not initiate the termination, you may be able to avoid the suspension period.<\/p>\n\n\n\n
How to best avoid a blocking period<\/h3>\n\n\n\n
The best way to receive unemployment benefits from the first day despite dismissal for misconduct is to Filing a dismissal protection suit<\/strong>. For example, a comparison can be made there:<\/p>\n\n\n\n
\u201cThe employer no longer maintains the allegations in connection with the dismissal of [\u2026] following the discussion at the conciliation hearing.\u201d<\/em><\/p>\n\n\n\n
- Effectiveness of a dismissal for conduct reasons<\/a><\/li>\n
- Dismissal for conduct reasons in response to a breach of duty<\/a><\/li>\n
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