Ordinary termination with a time period of notice

Definition

Ordinary termination with a time period of notice is an unilateral declaration of intent to terminate a contract of employment under observance of a time period of notice and due dates.

Area of application and admissibility

Area of application

Ordinary termination with a time period of notice is the usual procedure for the termination of a contract of employment having an indeterminate time period. In the case of a contract of employment for a defined period of time, ordinary termination with a time period of notice is essentially inapplicable and/or non-functional respectively.

Admissibility

The principle of freedom to give notice of termination exists, i.e. notice of termination is not conditional on certain grounds. Notice of termination with misfeasance initiates a liability to indemnify and also terminates a contract of employment.

Duty of justification

When notice of termination of a contract of employment is given by an employer, the termination is to be justified in writing on the demand of the employee when the other contractual party so requires (comp. Art. 335, Para. 2 of the ‘CoO’). In case of an infringement of the duty of justification, the following sanctions can be imposed:

  • application claim to the court for compliance;
  • the inclusion of the consideration of evidence of a possible act of misfeasance;
  • the charging of litigation costs and fees.

Time periods of notice and due dates

General

Time periods of notice have the purpose of permitting the contractual parties to readjust themselves to the termination of a contract of employment (search- for a new employee and/or a new position, respectively). The time period commences on the date of the receipt of a notice.

Termination due dates serve the purpose of the coordination of the termination date.

Statutory time periods of notice and due dates

The statute law prescribes the following time periods of notice:

  • during the probationary time period: seven days to take effect at the end of a calendar week (comp. Art. 335b, Para. 1 of the ‘CoO’);
  • during the first year of employment: one month (comp. Art. 335c, Para. 1 of the ‘CoO’);
  • from the second to the ninth year of employment: two months (comp. Art. 335c, Para. 1 of the ‘CoO’);
  • as from the ninth year of employment: three months (comp. Art. 335c, Para. 1 of the ‘CoO’).

The statutory due date for termination is essentially the end of any one calendar month. Any contractual alteration in time periods of notice are to require a written agreement.

Notice of termination as an act of misfeasance

Prerequisites

  • the existence of a notice of ordinary termination;
    • termination protection has no application to extraordinary notices to terminate, or to terminations of contracts of employment upon expiry of a contractual time period, or to termination agreements.
  • the existence of misfeasance;
    • an act of misfeasance obtains in the following cases (comp. Art. 336 of the ‘CoO’):
      • notice of termination on grounds of a characteristic, to which one of the parties is entitled on the basis of personage, unless a characteristic is in connection with the contractual employment (e.g. age, nationality, health);
      • notice of termination on grounds that one of the parties exercises a constitutional right;
      • notice of termination solely on grounds of thwarting the accrual of claims from the other party;
      • notice of termination on grounds that the other party asserts claims under a contract of employment in good faith;
      • notice of termination on grounds that the other Party enters obligatory- military service or alternative civil protection- or community services;
      • notice of termination by an employer on grounds that an employee is a member of a trade union, or not a member, or because an employee is a trade union convener;
      • notice of termination by an employer during a time period of office of an employee serving as an elected employees representative in an internal organisation or in an organisation of an external associated enterprise;
      • notice of termination by an employer within the scope of mass dismissals without the employees representatives-, or when no such organisation exists, without the employees being consulted.

Statutory consequences

  • Notice of termination of contractual employment:
    • misfeasance has no effect on an ordinary termination of a contract of employment.
  • Claim to indemnities:
    • The party giving notice of termination of a contract of employment involving an act of misfeasance is to indemnify the other party. The amount of indemnity is to be fixed by the court.
  • Claim to indemnity:
    • Statutory rights are reserved for a party to assert indemnities or reparation claims under other legal titles.

Inadmissible notice of termination

Prerequisites

  • The existence of a notice of ordinary termination:
    • termination protection has no application to extraordinary notices to terminate, or to terminations of contracts of employment upon expiry of a contractual time period, or to termination agreements;
  • Expiry of the probationary time period;
  • Inadmissible notice of termination;
    • the inadmissibility of a notice of termination obtains under the following circumstances (comp. Art. 336c, Para. Of the ‘CoO’):
      • those preventing an employer from giving notice of termination of contractual employment:
        • whilst an employee is on obligatory- military service or alternative civil protection- or community services, as well as during the four weeks before- and subsequently to the service, when the service has a duration of more than eleven days;
        • when an employee is partially or totally hindered in providing the labour inculpably due to sickness or accident; and this during 30 days in the first year of service, during 90 days from the second to the fifth year of service, and during 180 days from the sixth year of service;
        • during pregnancy and during the 16 weeks after the natal confinement of a female employee;
      • Circumstances preventing an employee from giving notice of termination of contractual employment:
        • when a superior, whose position the employee is capable of carrying out as a deputy, or an employer him- or itself, is hindered from exercising his/its business activities due to obligatory military service or alternative civil protection- or community services, and his/its employee is delegated the deputisation for such business activities.

Statutory consequences

  • nullity and voidance of a notice to terminate:
    • a notice to terminate when inadmissible becomes null and void under Art. 336c, Para. 2 and Art. 336d, Para. 2 of the ‘CoO’);
  • dwell time period of a notice of termination:
    • should termination be notified before the commencement of a dwell time period, and the time period of notice is not yet expired, then the time period becomes interrupted and only continued after the termination of the dwell time period (comp. Arts. 336c, Para. 2 and Art. 336d, Para. 2 of the ‘CoO’).