Working End > Dismissal

Dismissal by Employer or Employee

Definition, Explanation

A dismissal is the unagreed ending of an employment, being initiated either by the employer or the employee. The other contractor does not necessarily agree to it, unlike in a termination agreement. A dismissal must always be announced in written. Other ways are invalid, including email. Duration of legal notice periods for dismissal depends on the past duration of the employment, respective company membership. The only exception is the so-called dismissal without notice.

Sometimes, a dismissed employee is paid a severance pay by the employer. However, there is no legal entitlement to that, in Germany. The new § 1a of dismissal protection act does not ensure such entitlement! It only says that the employee is entitled to a severance payment if the employee waives his three-weeks right of legal action. What the employer is obliged to is to explicitly inform about these conditions in the written cancellation notice. So, de facto, severance payment is voluntary. Often, however, severance payment is regulated by collective agreements. The usual are severance payments amounting to 1/2 to ¾ monthly incomes for each year employed.

Sorts of dismissal are distinguished by the reason:

• Contractual notice of dismissal, or proper notice of termination:
  no reason has to be stated. Only employment contract and collective agreement have to be complied with regarding the period of notice
• Enforced redundancy:
  the company’s situation requires the dropping of the job
• Dismissal on grounds of conduct:
  the employee has behaved contrary to the contract. An example is frequent being late for work. Dismissal must be preceded by an “Abmahnung”
• Dismissal for personal reasons:
  reasons are about the person of the employee, e.g. loss of capabilities after an accident
• Exraordinary dismissal, or dismissal without notice:
  after severe violations by the employer or the employee. Must be announced within two weeks after the reason becomes known to the cancelling party
• Dismissal for suspicion:
  there are suspicious facts rendering impossible confidentially continuing the employment, as it is the case for suspicion of theft
• Dismissal with the option of altered conditions of employment:
  the existing employment contract is changed via a cancellation. This way is gone when e.g. the employee is to be transferred to another job in the company, without the employee losing employment
• Mentally resignating:
  stands for a mental or emotional state. The employee is no longer committed to the tasks but merely fulfils what is required to not risk being dismissed for low performance

Death of the employer, by the way, is no reason for termination of the employment contract.

A dismissal by the employer becomes valid only when it has not been contested in labour court within three weeks after receipt by the employee. Exceptions are when prescriptive written form is not complied with, or the calculated notice period is wrong.

Dismissal periods are, counted until the end of a calendar month,

• 1 month for a past employment of 2 years,
• 2 month for a past employment of 5 years,
• 3 month for a past employment of 8 years,
• 4 month for a past employment of 10 years,
• 5 month for a past employment of 12 years,
• 6 month for a past employment of 15 years,
• 7 month for a past employment of 20 years,
• 2 weeks during the employee’s probation period,
• all durations of past employment being only counted started from the employee’s date of reaching the age of 25

In some cases a performed dismissal results in entitlement to re-employment. E.g. when a suspicion turns out to be unjustified. But also for contractual notice of dismissal – even enforced redundancy – this entitlement can be given.

Dismissal protection act (Kündigungsschutzgesetz) protects the employee from unfair dismissal.

Special protection is given to pregnant employees and employees under maternity protection, parents on parental leaves, severely disabled employees, soldiers in basic military service, temporary-career volunteers (2 years) and alternative-servants.

According to jurisdiction of German labour court, all dismissals underlie the principle of proportionality: A dismissal meant to end the employment is only allowed if the employee cannot by any means be employed in another job or another facility of the company, also taking into account possible prior education, or at altered contract conditions (see above, kinds of dismissals).

Tips, Checklist

• A dismissal is only valid if it has been declared in written to the other party. Reasons do not have to be stated in the declaration, however that can vary depending on collective agreements, company agreements, or single employment contracts
• Look into at dismissal protection law, or, when you want to object to a dismissal, involve a legal advisor
• After enforced redundancy, too, entitlement to re-employment can arise. E.g. if the employer recruits a new employee during the period of notice because maintaining the position is beneficial again, e.g. since new clients’ orders have been accepted
• Do not hastily follow your employer’s suggestion to prefer a termination agreement to a dismissal. That might be advantageous for them and not for you, when e.g. labour agency refuses to pay unemployment benefit for you had agreed to your unemployment, which is easily imputed. Sometimes it might even be better to risk instant dismissal
• Last but not least: Your most effective dismissal protection is to become indispensable to your employer
• After dismissal, report unemployed at the labour agency. This should also be mentioned in your letter of cancellation

Articles

• Seven Things to Say After Hearing You're Fired; My Global Career, August 17, 2009
• How to Quit a Job Properly; 45 Things, July 16, 2009
• 30 Percent of Layoff Survivors Feel Burned Out; The Work Buzz, May 28, 2009
• Wiped Out: Along With Jobs, Laid.Off Lose Photos, Emails, WSJ.com, April 30, 2009
• How Soon Can You Deem Your Job Worthless? Iorgpsych, March 30, 2009
  

Last update: 06/17/2010