In case of gross misconduct by the employee, the employee can be summarily (instantly) dismissed. This means that the employee can be dismissed without notice or a payment in lieu of notice.
In the event of immediate dismissal for urgent cause, the employer immediately terminates the employment contract due to an urgent reason. The employer does not have to go to court for this. The employment contract ends immediately.
If the employer doubts whether there is sufficient reason for the dismissal to be canceled, then the employer can also choose to request the subdistrict court judge to terminate the employment contract. In case of doubt, this is always advisable.
The employer can only dismiss the employee if there is reasonable reason to do so. A reasonable ground for dismissal is a dismissal for culpable acts or omissions on the part of the employee.
Culpable acts or omissions also include urgent reasons that justify immediate dismissal.
Examples of pressing reasons are:
Urgent causes are characteristics or behavior of an employee that force the employer to dismiss the employee. The following requirements must be met for a legal summary dismissal for urgent reasons:
Without delay is something different than immediately. The employer may use some time to conduct an investigation or, for example, to hear the employee or to obtain legal advice. But if the employer waits too long, this requirement is not met.
The main rule is that an employer can only dismiss an employee if it is not possible to relocate the employee to another suitable position within a reasonable period, whether or not
not with the help of training. This is different with an instant dismissal for urgent cause. In that case, the employer does not have to check whether reassignment is possible.
If the urgent reason is caused by intent or fault of the employee, the employee must pay the employer compensation. With a permanent contract or temporary contract with notice period for termination, the reimbursement is equal to the wage that the employee would have received over the applicable notice period. The subdistrict court judge can, if he considers it fair, reduce this reimbursement. The reimbursement must, however, be at least equal to the amount that the employee would have received as wage over the statutory notice period. If there is a temporary contract that cannot be terminated prematurely, this compensation is equal to the wage the employee would have received if the temporary contract had been terminated by operation of law. The subdistrict court judge can, if he considers it fair, also reduce this reimbursement.
Employees are entitled to a transition allowance upon dismissal. The employer does not have to pay a transition payment if the dismissal is the result of serious culpable actions or
omission of the employee (which is usually the case in the event of immediate dismissal), unless the sub-district court decides otherwise. In that case, it may be that the transition payment still has to be paid, in whole or in part.
If the employee does not agree with the immediate dismissal, the employee can ask the sub-district court to annul the dismissal. The employee can instead also ask for compensation and in addition to this - in the case of a permanent contract or a temporary contract with a notice period for early termination - a compensation for ignoring the cancellation period.
The employee must file this request with the sub-district court within 2 months of the day on which the contract ended with immediate effect.
In the case of a permanent contract or a temporary contract that can be terminated prematurely, the subdistrict court judge will usually condemn the employer to pay a fair compensation and the judge will determine the amount thereof. The fair compensation can be a considerable amount. The exact amount depends on all circumstances of the case.
The compensation for ignoring the cancellation period is equal to the wage that your employee would have received over the applicable cancellation period.
The subdistrict court judge can, if he finds it fair, reduce this compensation for ignoring the notice period, but not to less than the wage for three months. If the statutory notice period is longer than three months, then the reimbursement cannot be moderated further than the wages remaining over the cancellation period.
For a temporary contract that cannot be terminated prematurely, the reimbursement is equal to the amount that your employee would have received as wages if the temporary contract were terminated by operation of law.
The subdistrict court judge may, if he considers it fair, reduce this reimbursement, but not to less than the wage for three months.
If a dismissal situation occurs, you can of course contact us for consultation. We do not charge any costs for an meeting of half an hour to get acquinted. Based on this conversation you can decide whether you want to work with us. Contact us for an appointment. We are happy to assist you. Our motto is not for nothing: "Your problem, our concern."
Hein Kernkamp will gladly help you further.
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