The extraordinary termination

General

An extraordinary notice of termination is an unilateral declaration of intent to terminate a contract of employment of indeterminate duration without observing the prescribed time period of notice and associated due dates and/or to terminate a contract of employment of determinate duration before the expiry of the fixed duration of the contract. Essentially, contractual employment is thus terminated with immediate effect..

Area of application and admissibility

When so called material grounds exist, extraordinary notice to terminate any contractual employment can be given at any time. When extraordinary notice is not justified on material grounds, a duty of indemnification obtains (comp. Arts. 337e and 337d of the ‘CoO’).

Duty of justification

An extraordinary notice of termination is to be justified in writing, when the other contractual party requires such (comp. Art. 335, Para. 2 of the ‘CoO’). In case of an infringement of the duty of justification, the following sanctions can be imposed:

  • enforcement of the duty of compliance before the court;
  • the charging of litigation- fees and costs;
  • inclusion of evidence of an act of misfeasance.

Material grounds

Definition

Materials grounds are all circumstances, on the basis of whose existence the continuance of contractual employment cannot, in good faith be reasonably expected of the party giving notice (comp. Art. 337 Para. 2 of the ‘CoO’). When the statute law itself fails to concretise material grounds, as for example under Art. 337, Para. 3 [sole culpable hindrance on the part of an employee] or under 337a of the ‘CoO’ [insolvency of an employer], then such are to be adjudicated before the court. In most cases, material grounds are grievous culpable infringements of a contract of employment. In cases of less grievous infringements, a prior warning should have been issued.

Assertion

Extraordinary notice of termination is to be given as soon as possible after the ascertainment of the material grounds (mostly 2 to 3 days). The onus of proof is on the party claiming the existence of material grounds.

Examples:

  • Infringement of the duty to provide the labour:
    • such includes for example several days of withholding the labour, the unauthorised taking of days of vacation, or grossly negligent deficient labour;
  • Infringement of the duty to pay remuneration;
  • Infringement of the duty of fidelity:
    • e.g. criminal acts associated with the contractual employment; inacceptable behaviour towards an employer or work colleagues; the canvassing away of customers or employees;
  • Infringement of the duty of due care:
    • e.g. criminal acts against an employer, insufficient employment of the labour of an employee, excessive supervision of an employee or grievous stigmatisation of an employee.

Justified extraordinary termination

Definition

A justified extraordinary notice of termination exists when notice is given on material grounds.

Case examples

Material grounds mostly have to do with behaviour infringing a contract of employment by one of the parties. An infringement of a contract is to be culpable and the party giving notice may also not be in culpability (comp. Art. 337b of the ‘CoO’).

Consequences

  • Termination of contractual employment;
  • Claim to indemnities: an employee is entitled to be indemnified by compensation for the remuneration due under a contract of employment terminated under observance of the time period of notice of termination (Art. 337c, Para. 1 of the ‘CoO’).

Unjustified extraordinary termination

Definition

Unjustified extraordinary notice of termination exists when notice is not given on material grounds. The following case examples can be differentiated:

  • Unjustified dismissal (Art. 337c of the ‘CoO’);
  • Unjustified attendance of- or absence from the place of work (Art. 337d of the ‘CoO’);

Unjustified dismissal

In such a case, an unjustified extraordinary notice of termination is given by an employer. The statutory consequences are the following:

  • Termination of a contract of employment;
  • Claim to indemnities;
  • Possible redress.

Unjustified attendance- or absence from the place of work:

In such a case, an unjustified extraordinary notice of termination is given by an employer. The statutory consequences are the following:

  • Termination of a contract of employment;
  • Indemnity of an amount of a quarter of the remuneration per calendar month;
  • Indemnities for other possible forms of loss or damage.