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Conduct-Related Termination: What You Can Do as an Employee!

A conduct-related termination can be issued by the employer if the employee seriously breaches their contractual obligations.

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Have you received a conduct-related termination? Contact us at info@kern-peters.de or +49 (0) 89 21 55 2286. We can help you.

If an employee's behavior was such that they should have reasonably expected it to jeopardize the employment relationship, the employer is not required to issue a formal warning before termination. However, in general, the employer must issue a warning before proceeding with a conduct-related termination.

In this post, we provide information about conduct-related termination, the conditions under which it is valid, and what employees can do if they have received a conduct-related termination.

Overview:

  1. What does conduct-related termination mean?
  2. Can you be terminated for conduct-related reasons without receiving a prior warning?
  3. What are the requirements for a conduct-related termination?
  4. What are conduct-related reasons for termination?
  5. What to do in case of a conduct-related termination?
  6. Conclusion
  7. FAQ

1. What does conduct-related termination mean?

If general dismissal protection applies to an employment relationship, a regular termination must be socially justified in order to be effective.

For social justification, one of the three statutory reasons for termination under Section 1 of the German Protection Against Dismissal Act (KSchG) must be present. Therefore, the regular termination must be issued by the employer either for operational, personal, or conduct-related reasons.

Requirements for General Dismissal Protection

For general dismissal protection to apply to an employment relationship, two conditions must be met:

  • First, the company must employ more than 10 full-time employees. Part-time employees are counted proportionally based on their share of full-time employment.
  • Second, the waiting period for the specific employment relationship must be fulfilled. General dismissal protection only applies once the employee has been employed at the company for six months. The length of the probationary period is not relevant in this context.

Conduct-Related Termination Requires Breach of Duty

Both employees and employers have specific obligations arising from the employment relationship and the underlying employment contract.

The employer's primary duties include providing employment and paying wages, while employees are required to make their labor available and work. Additionally, duties such as the obligation to show consideration apply. For example, an employee must not intentionally damage or steal company property.

If an employee breaches their contractual obligations, this can justify a regular conduct-related termination. In such cases, the employee's behavior does not align with the requirements of the employment contract and the duties owed under it.

The conduct must also be controllable, meaning the employee has the ability to change the behavior that violates the contract. For example, an employee can stop arriving late by leaving earlier for work.

Conduct-Related Breach of Duty Must Be Controllable

If the breach of duty does not involve controllable behavior, a conduct-related termination is not applicable.

For example, if a truck driver loses their driver's license, this is not controllable behavior. In such a case, a personal-related termination may be issued.

A similar situation applies in cases of health limitations or long-term illness, as the employee has no ability to influence these circumstances through a change in behavior.

Immediate Conduct-Related Termination

A conduct-related termination can also be issued by the employer without notice. However, the employee's breach of duty must be very severe to justify this. The specifics of each case and the circumstances are crucial in making this determination.

An immediate conduct-related termination may be justified, for example, if the employee is caught stealing company property or consistently arrives late to work, where the tardiness is tantamount to a willful refusal to work.

Fraudulent manipulation of working hours or other criminal acts can also justify an extraordinary conduct-related termination. In general, though, a formal warning must usually be issued before a conduct-related termination.

immediate termination

What should you do in the case of an immediate termination? We answer this question in this post.

2. Can you be terminated for conduct-related reasons without receiving a prior warning?

In the case of conduct-related termination, the employee engages in behavior that violates contractual obligations, thereby giving the employer grounds for termination.

This behavior must be controllable by the employee, meaning the employee can influence and stop the undesirable behavior that breaches their duties.

Warning Should Provide Opportunity for Proper Conduct

To make the employee aware of the undesirable behavior and encourage them to comply with their duties, the employer can and must notify the employee of the breach of duty. This notification can be provided in writing as a warning.

If the employee continues to breach the same obligations after receiving a warning and repeats the same behavior, the employer may proceed with a conduct-related termination. There is no general rule specifying after how many relevant warnings the employment relationship will be terminated.

Warning in labour law

Read more about the topic of warnings in this post.

Conduct-Related Termination Without Warning

If a warning is unlikely to be effective from the outset, the employer may issue a conduct-related termination without a prior warning. This can occur when an employee announces their intention to commit similar breaches in the future, as a warning would have no impact on their future behavior.

The same applies if the breach of duty is so severe that the employee should clearly recognize that their behavior is undoubtedly putting their job at risk. In such cases, the employer is not required to issue a prior warning.

3. What are the requirements for a conduct-related termination?

In addition to the existence of a breach of duty and a prior warning (or the fact that a warning is unnecessary), a conduct-related termination must meet other conditions to be legally effective.

Firstly, the breach of duty must be both culpable and unlawful. For instance, if there are extenuating circumstances, the breach may not be considered culpable or unlawful. In the case of tardiness due to an exceptional disruption of public transportation, the employee may not be considered at fault.

Proportionality of Conduct-Related Termination

A conduct-related termination must also be proportionate. It should be the last resort, meaning there should be no less severe measures available to the employer to resolve the disruption to the employment relationship for the future.

Less severe measures could include another warning or transferring the employee to a different position where no further issues are expected, such as a role without customer contact.

Balancing of Interests

Finally, the employer must conduct a balancing of interests. This involves weighing the employer’s interest in ending the employment relationship against the employee’s interest in continued employment.

Factors in favor of the employee may include a long history of employment without prior breaches or the employee’s personal circumstances, such as existing support obligations.

On the other hand, factors against the employee may include the significant impact their behavior has on the company or if their actions have caused or continue to cause disruptions to workplace harmony.

4. What are conduct-related reasons for termination?

To justify a conduct-related termination, there must be behavior from the employee that constitutes a serious breach of their contractual obligations.

The reason for termination, therefore, lies in the fact that the employee is violating their duty to perform their work in accordance with instructions under the employment contract or failing to meet their obligations of consideration or loyalty toward their employer.

Examples of Conduct-Related Termination:

  • Criminal acts against the employer, such as theft or time fraud
  • Taking unauthorized leave
  • Announced "sick leave" without valid reasons
  • Physical assault, threats of violence, or sexual harassment towards the employer, colleagues, supervisors, or customers
  • Violation of company policies, such as private use of the internet or phone, consumption of alcohol or drugs, or smoking when explicitly prohibited by company regulations
  • Refusal to work or underperformance, such as intentionally working too slowly or making deliberate errors
  • Breach of non-compete clauses, such as engaging in competing activities that harm the employer
  • Violation of a prohibition on secondary employment
  • Publicly insulting the employer
  • Filing complaints against the employer with authorities or prosecutors without valid grounds known to the employee

5. What to do in case of a conduct-related termination?

If you, as an employee, have received a conduct-related termination, whether regular or extraordinary, you have the option to challenge the termination.

Employees have 3 weeks from the receipt of the termination letter to file an unfair dismissal claim.

Unfair dismissal claims

Read more about unfair dismissal claims in this post.

An unfair dismissal claim provides the opportunity to have the conduct-related termination reviewed for legal validity by the labor court. Additionally, dismissal protection cases often offer the chance to negotiate a settlement with the employer, which may include severance pay for the loss of employment.

If you simply accept the conduct-related termination without filing a claim, you will not receive any severance, as the termination becomes legally effective after the claim deadline passes. Furthermore, there is a risk of a waiting period for unemployment benefits. In a settlement, employers are often willing to withdraw the accusations against the employee, reducing the risk of a benefits delay.

Conduct-Related Termination and Waiting Period for Unemployment Benefits

Unemployment insurance, as the name suggests, is a form of insurance. By paying contributions, employees insure themselves against the risk of unemployment. If an individual becomes unemployed through no fault of their own, they are entitled to unemployment benefits as an insurance payout.

However, in the case of a justified conduct-related termination, the individual did not become unemployed through no fault of their own. The employee's actions directly led to the termination of the employment relationship. As a result, the Federal Employment Agency typically accuses the employee of behavior that contradicts the terms of their insurance.

This usually leads to the agency imposing a 12-week waiting period for unemployment benefits according to Section 159 (1) Sentence 1 No. 1 of the German Social Code III (SGB III). During these 12 weeks, the individual does not receive unemployment benefits and is financially on their own. Additionally, the benefit period is not extended; instead, the waiting period shortens the overall duration of unemployment benefits.

By taking legal action against a conduct-related termination, these negative and potentially financially devastating consequences can often be avoided.

We would be happy to advise you on this matter!

6. Conclusion

  • Conduct-related terminations occur due to breaches of duty by the employee. The behavior in question must be controllable. Additionally, the breach of duty must be culpable and unlawful.
  • Before issuing a termination, the employer must notify the employee of the breach of duty in writing through a formal warning.
  • Conduct-related reasons for termination may include unexcused absences, refusal to work, insults towards supervisors or colleagues, violations of company policies, or unauthorized secondary employment.
  • Employees have the option to challenge a conduct-related termination through an unfair dismissal claim.

7. FAQ

What is a conduct-related termination?

If an employee culpably and unlawfully breaches their contractual obligations, and the behavior is controllable, this can justify a regular conduct-related termination.

What reasons can lead to a conduct-related termination?

Reasons may include criminal acts against the employer, refusal to work, taking unauthorized leave, violations of company policies, insults, or sexual harassment.

What conditions must be met for a conduct-related termination?

In addition to the existence of a breach of duty and a prior warning (or the fact that a warning is unnecessary), the employee's breach must be culpable and unlawful. The employer must also conduct a balancing of interests and ensure that no less severe measures are available to resolve the issue.

Is a warning necessary before a conduct-related termination?

Generally, yes, as the employee should be given the opportunity to correct their behavior.

What can I do if I have received a conduct-related termination?

If you, as an employee, have received a conduct-related termination, whether regular or extraordinary, you have the option to challenge the termination through an unfair dismissal claim within 3 weeks of receiving the termination letter.

Picture credit: © ArturVerkhovetskiy | PantherMedia

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