Conduct-related dismissal

Requirements for a conduct-related dismissal

A conduct-related dismissal under § 1 para. 2 KSchG requires a culpable breach of duty by the employee. The employer must prove four requirements: a specific breach of duty, a prior relevant warning (as a rule), a negative prognosis for future conduct, and a balancing of interests that falls in the employer’s favour.

This standard of review applies only once the employment relationship has existed without interruption for more than six months in the same establishment or business (§ 1 para. 1 KSchG). In businesses that as a rule employ ten or fewer employees, the first section of the KSchG does not apply to employment relationships that began after 31 December 2003 (§ 23 para. 1 sentence 3 KSchG).

The purpose of the dismissal is to prevent future disruption of the contract. The employer must therefore show why further breaches of duty are to be expected. This negative prognosis rests on a relevant warning that was followed by a breach of the same kind.

Dismissal remains the last resort. Before dismissing, the employer must consider whether a further warning, a transfer or a variation dismissal is enough to bring about conduct that complies with the contract. If a milder measure is sufficient, dismissal is not necessary.

The warning as a requirement for validity

Before an ordinary conduct-related dismissal, the employer must as a rule have issued at least one relevant warning that is justified on the merits. A warning is relevant only for misconduct of the same kind. A warning for lateness therefore does not support a dismissal for unauthorised private use of the internet.

A warning supports a later dismissal only if it fulfils the functions of censure, documentation and warning. It must specifically identify the conduct complained of by date and event, call for conduct that complies with the contract, and threaten individual consequences under employment law in the event of repetition (BAG, judgment of 19 July 2012, case 2 AZR 782/11).

If the relevant warning is missing, or is not justified on the merits, the negative prognosis generally cannot be established. The dismissal is then socially unjustified. If, on the other hand, the warning is justified on the merits and makes clear that dismissal is threatened if the conduct recurs, a mere formal defect does not deprive it of its warning function. The employee is then still warned (BAG, judgment of 19 February 2009, case 2 AZR 603/07).

The employer must prove the facts on which the dismissal is based (§ 1 para. 2 sentence 4 KSchG).

Typical grounds and common mistakes

Conduct-related dismissals rest on a range of different allegations. What matters for validity is whether the employer has complied with the requirements for warning, prognosis and balancing of interests.

Common grounds for dismissal

Common allegations are unexcused absence, repeated lateness, refusal to work and breaches of work instructions. Others include unauthorised secondary employment, private internet use during working hours, insulting superiors or colleagues, theft or embezzlement, and breaches of confidentiality obligations.

The seriousness of the breach determines whether a warning is required first. Unlawful and deliberate acts against the employer’s property can constitute good cause even where the items involved are of low value. The law does not, however, recognise absolute grounds for dismissal; a balancing of interests in the individual case is always required (BAG, judgment of 10 June 2010, case 2 AZR 541/09).

Typical employer mistakes

Dismissals are vulnerable to challenge where the warning concerns a different allegation from the dismissal itself. The same applies to warnings that are not justified on the merits and to repeated warnings without consequences that have lost their warning function.

A formal defect in the warning, for example a hearing required by collective agreement that did not take place, can lead to the warning being removed from the personnel file. Even such a formally invalid warning warns the employee if it is justified on the merits and clearly threatens dismissal should the conduct recur (BAG, judgment of 19 February 2009, case 2 AZR 603/07).

A further mistake lies in a balancing of interests that fails to give weight to a long, unblemished period of employment (BAG, judgment of 10 June 2010, case 2 AZR 541/09). The works council must be consulted before every dismissal. A dismissal issued without this consultation is invalid (§ 102 para. 1 sentence 3 BetrVG).

Unfair dismissal claim and summary dismissal

Only a timely unfair dismissal claim can succeed against a conduct-related dismissal. If the invalidity is not asserted in time, the dismissal is deemed valid from the outset under § 7 KSchG. Mistakes in the warning, the prognosis and the balancing of interests then have no consequence.

Three-week deadline to sue and the costs of proceedings

The unfair dismissal claim must reach the labour court within three weeks of receipt of the written dismissal (§ 4 sentence 1 KSchG). The deadline begins on receipt, not on the date of the dismissal letter.

In first-instance judgment proceedings, the successful party has no claim to reimbursement of the costs of legal representation (§ 12a para. 1 sentence 1 ArbGG). Each side bears its own lawyer’s costs. This applies regardless of the outcome of the proceedings.

Summary conduct-related dismissal

For good cause, the employer can dismiss the employment relationship without notice (§ 626 para. 1 BGB). This requires that continuation until the notice period expires cannot reasonably be expected of the employer, weighing the interests of both sides.

The declaration period is two weeks. It begins as soon as the person entitled to dismiss becomes aware of the facts material to the dismissal (§ 626 para. 2 BGB). Employers therefore often declare a summary dismissal together with an ordinary dismissal in the alternative. If the summary dismissal fails, the ordinary dismissal declared in the alternative can still end the employment relationship.

Further information on employment law

These topics may also be of interest:

• Received a warning
• Unfair dismissal claim
• Severance pay after dismissal

This information does not constitute legal advice in an individual case.