Dismissal on grounds of conduct requires proper justification

Published 08 December 2017 by GRP Rainer LLP

If an employee violates obligations set forth in his employment contract, he may then be issued with notice of dismissal on grounds of conduct. That being said, the notice needs to well prepared if it is to be effective.

If an employee is covered by the Kündigungsschutzgesetz, Germany’s employment protection legislation, his employer must justify ordinary notice of dismissal for it to be issued effectively. We at the commercial law firm GRP Rainer Rechtsanwälte note that the relevant grounds may concern the employee in question personally or relate to his conduct, but operational reasons can, of course, also justify dismissal.

It is possible to issue notice of dismissal on grounds of conduct if the employee substantially breaches the obligations laid out in his employment contract and the employer has no less severe measures, such as a formal warning, at its disposal to change the employee’s behaviour. Breaches of duty of this kind may include failure to perform on the part of the employee as well as insufficient performance if the employee does not fulfil said obligations while observing the expected quality or quantity. Having said that, the employer has to be able to demonstrate conclusively that the employee’s performance has been considerably below average. As is clear from a ruling of the Arbeitsgericht Siegburg (Labour Court of Siegburg) from August 25, 2017, failure to do so might result in the notice of dismissal being ineffective (Az.: 3 Ca 1305/17).

In the instant case, a car mechanic had been dismissed on grounds of conduct due to his poor work performance. In justifying the dismissal, the employer stated that the mechanic had only identified four out of six mistakes in a workshop test and failed to perform outstanding service work. Because the employee had already been issued with a formal warning on three occasions, the employer took the view that there was no longer any chance of the former changing his behaviour.

However, the employee’s action for wrongful dismissal was successful. The Arbeitsgericht Siegburg held that the employer had not presented a representative period of the mechanic’s performance and had also failed to compare the latter’s error ratio with the performance of other mechanics employed at the company. The Court went on to say that it was therefore impossible to determine whether the mechanic had culpably violated the obligations set forth in his employment contract. It is still possible for an appeal to be lodged against the decision

Even though the ruling is not yet final, it shows that ordinary and not simply exceptional notice of dismissal needs to be properly justified. Lawyers who are experienced in the field of employment law can advise employers.