It is possible to issue exceptional notice terminating an employment relationship if there is good cause for doing so. However, in cases involving dismissal for good cause based on suspicion, this suspicion needs to be underpinned by strong circumstantial evidence.
We at the commercial law firm GRP Rainer Rechtsanwälte note that issuing exceptional notice of dismissal terminating an employment relationship with immediate effect is only possible if there is good cause for doing so. It is also an option if there is strong circumstantial evidence against the employee that gives rise to a suspicion which is liable to destroy the trust necessary for the continuation of the employment relationship. That being said, the requirements pertaining to what is referred to in German as a “Verdachtskündigung”, or dismissal on grounds of suspicion, are strict. This was confirmed by the Bundesarbeitsgericht (BAG), Germany”s Federal Labour Court, in its ruling of March 2, 2017 (Az.: 2 AZR 698/15).
In particular, the employer has to demonstrate that the suspicion is based on specific facts and circumstances that can be stated and, as the case may be, proven at a later date. At the same time, the employee must be afforded the opportunity to comment on the accusations. Furthermore, it needs to be highly likely that the suspicion is in fact true. Mere speculation is not enough.
The fact that the public prosecutor”s office has opened investigations against the employee or issued an arrest warrant is equally insufficient. The BAG justified this by stating that the labour courts must themselves appraise all of the grounds relevant to the dismissal on grounds of suspicion and are not bound by decisions made in criminal proceedings. It went on to say that while the decisions made by a criminal court can be taken into account by a labour court, the latter must itself conduct a thorough assessment. On the other hand, it is quite possible for an acquittal in criminal proceedings to also exonerate the employee in relation to his or her dismissal. The Court noted that for this to happen it is not even necessary for the suspicion to have been completely dispelled in the context of the criminal proceedings; it is sufficient for the suspicion to have at least been sufficiently weakened.
In justifying their decision to issue notice of dismissal, employers should also take care to ensure that their choice of words is as precise as possible and that they do not confuse terminology, as they can be evaluated differently from a legal perspective.
Whether exceptional notice of dismissal has been issued effectively is ultimately always a decision that is made on a case-by-case basis. Accordingly, employers should see to it that it is thoroughly prepared in as much detail as possible. Lawyers who are experienced in the field of employment law can offer advice.