You have no desire for your job and want to quit? When terminating by employee, you must observe certain rules, so that your termination is effective. But employers also have to stick to rules when they want to dismiss employees. We ask lawyer Robert Whyment what you need to know about dismissal as an employee. This explains the difference between the ordinary and extraordinary termination by the employee and which formalities you must observe. In addition, we will give you tips on how to prepare and perform your termination step by step.
1. Difference in termination
2. Special case: Cancellation before service
3. Notice period
4. Cancel as an employee
5. Notice of termination
6. Submission notice workers
7. Tips for termination preparation
8. Termination by the employer
9. Person-related termination
10. Behavioral termination
11. Termination of employment
12. Protection of workers
Facts about termination
a. Cancellation must always be in writing
b. Deadline: The term of notice must be followed by the legal notice period
c. Signature: The termination must be signed by hand
d. Justification: There is no need to state reasons for dismissal
Difference: Ordinary termination and extraordinary termination as an employee
You have no real challenges in your work and the chances of promotion are low? Or your friend has moved to another city and you do not feel like a long distance relationship? Sometimes the most diverse reasons lead one to cancel his job. The reason for the termination determines whether you make an ordinary termination or an extraordinary termination. In addition, there is the special case that you can cancel a job before you have started it at all. About these three cases, the legal expert Robert Whyment explains.
Ordinary termination as an employee
An ordinary dismissal by the employee is thereby the most frequently used notice form. That is, you want to give up your job for various reasons, like
a. New job offer
b. Studying a degree
c. Moving to another city or place
In principle, a dismissal by the employee is possible at any time without justification. Only the observance of the notice period and a notice of termination must be observed.
Extraordinary termination as an employee
In addition to the ordinary termination, however, there is also the extraordinary termination.
Often, cases are known in which employer or employees pronounce an extraordinary termination or terminate a term without notice. Employees also have the right to pronounce an extraordinary termination.
You can pronounce an extraordinary termination in the following situations, i.e. terminate without notice:
a. “Longer” absence of the work contractually agreed remuneration (warning required in advance)
b. Insult, threat, acts by the employer
c. Criminal offenses by the employer
Note from the expert:
It is also important in these cases, as well as in the case of an extraordinary termination by the employer without notice, that the written form is used. The termination must be pronounced within two weeks from the knowledge of an extraordinary grounds of termination. If, for example, you are threatened or offended, you have to react within two weeks and submit the extraordinary termination. The employment relationship is then immediately terminated as soon as the employee leaves the employer.
Special case: Cancellation before service
Sometimes the situation may be that several applications have been successful and your real dream job is only in prospect if you have already signed an employment contract with another employer. Then the question arises: Can the employment relationship also be terminated before service?
It depends. This is because the employment contract does not include the exclusion of such a possibility. If, therefore, the employment contract stipulates that a termination before employment is excluded, this is generally binding and one must adhere to the statutory notice period.
There is, of course, the possibility to agree amicably with the employer. But the latter has the possibility to reject this under the reference to operational requirements and plans. In addition, the employer may claim damages.
If, however, termination is not excluded before the employment contract, the possibility exists. Then you still have to pay attention, within which time the termination is possible. Again, the employment contract is binding. If, for example, the probationary period is envisaged, the notice periods for the probationary period apply to the termination of employment. In the exceptional case that the employment contract does not contain any rules on dismissal, the “interests of both parties” must be taken into account.
Observe the notice period
A termination which is pronounced with too short a deadline or which is received late by the employer is not invalid, but is only permissible on the next possible date. The obligation to provide the service with the payment of the remuneration continues until the next regular date of the notice period.
Which termination periods apply in principle depends on the employment contract regulations. In principle, the statutory notice period applies. It is then possible to terminate an employment relationship within four weeks (or 28 days) either on 15th of a month or at the end of the month. This applies irrespective of how long the period of employment in the company is.
Specifically, this means that if you wish to terminate on the 15th of the following month, the termination must be received by the employer no later than the following:
For a month with 31 days by the 18th of the respective month at the latest.
For a month with 30 days at the latest on the 17th of the respective month.
In February at the latest on the 15th or the leap year on the 16th of each month.
If you wish to terminate at the end of the month, the employer must be informed of the dismissal by the employer no later than these days:
For a month with 31 days on the 3rd of the respective month
For a month with 30 days on the 2nd of the respective month
On 28 and 29 February, respectively, on 31 January and 1 February respectively
Deviating agreements are possible, for example, if longer periods of notice are stipulated in employment contracts or other periods of notice apply because of tariff-compatible regulations.
Termination as an employer
You are also informed about how your employer can cancel in return, here are the statutory notice periods for the employer. These depend on the length of your employment in the company:
Period of employment in years
From 2 years of employment 1 month to the end of the calendar month
From 5 years of employment 2 months //
From 8 years of employment 3 months //
From 10 years of employment 4 months //
From 12 years of employment 5 months //
From 15 years of employment 6 months //
From 20 years of employment 7 months //
If you wish to terminate your employee, you must observe different formalities. We have summarized everything important for you.
Declaration of cancellation
In addition to the notice period, it is also important to determine whether and to what extent the notice of termination is correct. In principle, termination must be in writing. The ordinary dismissal does not need to be justified, but the termination notice must state the termination date. In addition, you must pay attention to the proper delivery to the relevant recipient, since termination will only take effect if access was actually expected.
If, for example, the business owner and the sole responsible person is absent for three weeks on summer holiday, the termination becomes effective only upon his return and knowledge of the termination.
It is therefore always a good idea to submit a termination at least in a twofold manner and, above all, to check precisely who is responsible for the receipt of the termination in the company and, if necessary, there are certain persons who have been designated for it. The simplest and safest way to terminate a contract is to personally hand it over to the employer or to a responsible representative.
Template for the notice of dismissal as an employee
These points must be stated in a notice of termination:
a. Name and address of the two contracting parties – i.e. your details as well as those of the company
b. Date, that is to say, concrete date, from which the termination is effective
c. Reference to a written confirmation of termination
d. Your handwritten signature
Termination of employment
Dear Ms/Mr [Name Contact person],
Hereby I terminate the employment relationship with you properly and on time at the nearest possible time. This is according to my calculation of the [termination date].
Please confirm receipt of this notice and the date of termination in writing.
I would ask you to provide me with a qualifying job-giving certificate.
I would like to thank you very much for the cooperation.
Your handwritten signature
Tips for termination preparation
Now that you have been informed about the legal situation of dismissal as an employee, we have some more tips on how to prepare your termination step by step.
a. Know the employment contract: Before you cancel, check your employment contract exactly, which points are to be observed and when a written notice of dismissal has to be submitted.
b. Prepare for the call: Once your termination is received, it will not take long and your boss will call you. Prepare yourself by thinking some good reasons and without provoking your boss.
c. Documenting steps: There can always be labor disputes. Be prepared and collect all relevant documents for your termination in a folder.
d. Complete projects: To avoid losing fate in front of your team, you should complete projects or pass them on to other colleagues before and after your termination. You should also leave your workspace cleanly without taking anything as well as say goodbye – either in person or in a common round.
e. Finding a new job: If you have been dissatisfied with your job, you should be looking for a new job before the termination. It will be much easier if you have a new job and a good reason is it as well.
Termination by the employer
But not only you can, but also your employer can pronounce or submit a job-cancellation for various reasons. Again, he must comply with the legal formalities as described above. For the following reasons, your employer may dismiss you:
It is also possible to terminate a person in case of frequent short-term illness. It is important whether the facts justify the assumption that frequent short-term illnesses are expected in the future. However, these frequent short periods of absenteeism must also lead to a considerable impairment of company interests. Ultimately, the individual case must always be considered and, in case of doubt, a medical report must be obtained.
A behavioral termination requires that you violate your contractual obligations by your behavior. Typically, it is about cases of repeated indecisiveness or of employees, who are found in the pub, for example, in the evenings, despite their illness. Before the employer pronounces the dismissal, he must consider whether he cannot stop the employee’s misconduct by issuing a warning. For example, if you miss a regular Monday morning at the office, your employer can give you a chance to change this behavior. However, if your employer remands you several times because of the same behavior, without a denunciation, you can at least assume that he does not feel the behavior as particularly disturbing. If, after three or even four attempts to deny the same behavior, a denunciation takes place, the seriousness of this can be questioned.
If it is clear from the outset that you will not change your behavior, your employer does not need to bail you out, but can also pronounce a termination right away.
Termination of employment
An employment-related termination means that you are terminated because your work has been canceled in a restructuring of the company. If there are several jobs with the same profile, the employer must carry out a social selection. The aim is to dismiss the worker who is least likely to be socially vulnerable.
In Section 1 (3), the Protection Act establishes the parameters on the basis of which the selection takes place: length of service, age, maintenance, and severity. It is often the case that young workers are coming to the social selection. Anyone who wants to counter the rapid establishment of a large family will nevertheless have a chance to make themselves irreplaceable in the company through special knowledge or achievements. Paragraph 1 (3), states that such employees are then not included in the social selection. If, for example, you are the only one in the company who can use a particular software, it should keep you out of the social selection.
By the way, your employer is obligated to check the termination before you can resume work at the company. If there is a works council in your company, your employer must inform them about the planned dismissal.
Protection of workers
In addition to the notice periods, the rules on protection against termination must be observed. In addition to the general protection afforded to all employees, there is also the protection clause.
In the case of companies with a maximum of five employees, the general protection against dismissal applies. This means, for example, that pregnant women, women during maternity leave, workers’ councilors, and severely handicapped persons enjoy special protection and cannot be terminated that easily. In addition, the termination may not be contrary to the Civil Code, i.e. be unfaithful. This means that an employee may not be denounced, for example, because he is homosexual or belongs to a particular religion.
If you work in a company with more than five employees and if your employment relationship lasts more than six months, the employment protection law applies. This has the consequence that a termination must be socially justified. It is socially justified, if it is personal, behavioral, or operational reason.
Unfair dismissal claim
If you are of the opinion that the dismissal is unlawful, you can apply for a protection clause before the working court. The court will then determine whether your employment relationship existed at the time of termination. Here, however, you must hurry; the complaint must be submitted to the court within three weeks after the notice of termination has been sent to you. However, late complaints are also possible, in some cases.