The dismissal

Termination is the declaration made by the employer that the employment relationship with immediate effect is terminated. A prerequisite for dismissal is always the existence of an important reason that makes it unreasonable for the employer to continue the employment relationship with the employee. Unlike ordinary termination, dismissal is also possible without restriction in the case of fixed-term employment relationships.

The termination declaration is generally not bound by any form, so it can therefore also orally or to be conclusive. However, in the case of apprenticeships, written form must be observed. It should be noted that it must be clear from the employer's declaration that the employment relationship is to be terminated prematurely for an important reason. It is not necessary for the termination notice to contain the reason for the termination of the employment relationship. According to case law, the employer may cite further grounds for dismissal - in any court proceedings - even if they only learned of them after the dismissal.

The employer's poor economic situation justifies No to a dismissal of employees.

The principle of immediacy

Grounds for dismissal must be asserted without undue delay, meaning without culpable hesitation, otherwise the right of dismissal will be waived or forfeited. „Immediately“ means that the employer must issue the dismissal immediately once they are aware of all the essential details of a reason for dismissal. The employer must, within this context, take all reasonable steps Due diligence is required. Essentially, it depends on the circumstances of the individual case as to when it can no longer be considered to be without undue delay. For guidance, here are some Examples Cited from the case law of the Supreme Court: A period of leave which can only be taken without the possibility of contact is generally disregarded when assessing the timeliness of dismissal. This also generally applies to weekends and public holidays. Furthermore, it is generally accepted that the employer must be allowed a reasonable period for consideration and the opportunity to obtain legal advice. A delay in issuing the dismissal can arise from the circumstances of the individual case, particularly if the employer is unclear about the facts and needs to ascertain them. The internal organisational structure of the company must also be taken into account, such as the longer decision-making processes of legal entities. This is particularly true if criminal behaviour is alleged against the employee and they deny it. In this case, the employer may wait with the dismissal until the competent authority has made a decision.

Is a warning necessary?

In general, a prior warning Not required. A warning is expressly regulated in § 82 lit c of the Trade Regulation Act 1859: An auxiliary worker can be dismissed if there is repeated drunkenness and at least two warnings have had no effect. According to § 27 Z 4 of the Salaried Employees Act, the dismissal of a salaried employee for persistent refusal of duty upon repeated commission also presupposes a warning.

The role of the works council

The employer must inform the works council immediately. The works council may, within three working days, agree to the dismissal, object to it, or make no statement. The works council's reaction affects the employee's legal options for challenging the dismissal, but not the dismissal itself.

Reasons for dismissal

grounds for dismissal are not uniformly regulated, but rather there are Differences for workers and employees, as well as those employed in various sectors. Due to its practical relevance, we will only discuss the grounds for dismissal for workers and employees here:

The grounds for dismissal are regulated in § 82 of the Trade Regulation Act 1859 for workers (exhaustive list) and in § 27 of the Employment Act (illustrative list). As the list in the Employment Act is illustrative, further grounds for dismissal can be contractually agreed upon for employees.

Grounds for dismissal depending on fault

Allen fault-dependent The grounds for dismissal inherently imply that the employer Claims for damages Can be asserted against the employee. These expire after three years from knowledge of the damage and the responsible party.

Grounds for dismissal unrelated to fault

A dismissal does not always require fault on the part of the employee. This applies to both manual workers and salaried employees. Incapacity for work as grounds for dismissal. However, according to the case law of the Supreme Court, this does not arise from mere performance errors or below-average work performance, but only when the employee is „unusable“. A debilitating illness is also grounds for dismissal for workers.

Unfair dismissal

An unfounded dismissal occurs when there is no valid reason for termination. Although the employment relationship is also terminated in this case, the employee is entitled, among other things, to Severance pay and Damages. An exception to this rule applies to persons who are subject to a special Protection against dismissal are subject to this. These include employee representatives, pregnant women, parents on parental leave, conscripts and civilian servicemen, disabled persons in receipt of benefits, apprentices and caretakers. Unjustified Dismissal is in these cases Ineffective, the employment relationship will continue.

Protection against dismissal

A distinction is made between individual, general, and special dismissal protection. Special dismissal protection, which benefits certain groups of people, has already been mentioned above. § 106 of the Employment Contracts Act (ArbVG) regulates general dismissal protection: In companies requiring a works council or in those where a works council would need to be established, an employee can challenge a dismissal in court. A prerequisite for a successful Contention is that there was no ground for dismissal, thus an unjustified dismissal. Individual protection against dismissal covers dismissals that were carried out for motives frowned upon by the legal order. This includes, in particular, dismissals that contradict the Equal Treatment Act, which aims to achieve equality between men and women. In this case, the employee can challenge the dismissal in court within 14 days.