Termination without notice, missed the 2-week deadline!
April 13, 2010 | 20,00 EUR | answered by Karlheinz Roth
I had my former employee observed by a detective agency. They found on 09 and 10.02.2010 that the employee was engaging in self-employment despite being on sick leave, had rented a workshop, and worked there for several hours on those days.
As I had been to court several times before, I was cautious with the immediate termination, so I consulted with some lawyers. Some saw little hope, but one lawyer on this website informed me that I had several good reasons: Unauthorized secondary activity during illness and violation of competition clause would be sufficient. So I made an appointment with a local lawyer, who scheduled me for 25.02.2010. I asked for an earlier appointment due to the two-week deadline, as I am not a lawyer, but had heard of this deadline before. He told me that this deadline did not apply in this case. Up to that point, I had not paid the detective agency bill, and the agency had not yet delivered the report. I paid the bill, and on 25.02.10, I received the report and surveillance photos via email in time for the lawyer appointment. The lawyer reviewed it and saw no reason to doubt the immediate termination.
On the same day, I wrote the immediate termination, which was delivered on 26.02.10.
Today was the conciliation hearing, and the judge said: "It looks like an immediate termination, but the deadline was missed..."
What can I do?
The detective agency report was clearly delivered on 25.02.10 via email and on 26.02.10 via mail.
I did verbally terminate him immediately on 10.02.10, but that doesn't count.
How can I defend my immediate termination in court?
Is this deadline generally 14 days, are there exceptions? Does this matter fall under that?
Thank you in advance.
Best regards,
Dear Seeker of Advice,
Thank you for your inquiry, which I will answer based on the information you provided as follows.
By omitting or adding further details from you, the legal assessment may differ, so the advice within this forum is only meant to provide initial legal guidance and cannot replace seeking advice from a local colleague.
With that being said, the following is stated:
Unfortunately, you were clearly poorly advised.
The effectiveness of an extraordinary termination of an employment contract requires:
a) Existence of an important reason
b) It is unreasonable for the terminating party to continue the employment relationship until the end of the statutory notice period or the agreed termination date
c) The termination must be made within a two-week period according to § 626 para. 2 BGB
d) If there is a works council, they must be consulted before termination
The above-mentioned two-week period starts from the moment the terminating party becomes aware of the facts that justify termination.
If the two-week period expires, the right to extraordinary termination also expires.
There is nothing you can do against the expiration.
However, it should be examined whether your ineffective extraordinary termination can be reinterpreted as a regular termination according to § 140 BGB.
This is always an option if it corresponds to the presumed intention of the terminating party and this intention is recognizable to the recipient of the termination at the time of receipt.
In the absence of the KSchG, it can generally be assumed that if an extraordinary termination is ineffective, the employer also intended to terminate the employment relationship at the earliest possible date.
If you suffer any damages, it would need to be assessed whether you can claim damages from the colleague.
I hope I was able to assist you in the matter.
I am available for a free follow-up question. If you are considering further representation, I recommend contacting me via the email address provided below. Modern communication allows for bridging greater distances.
Sincerely,
K. Roth
- Lawyer and certified executor of wills -
Law Office of K. Roth
info@kanzlei-roth.de
www.kanzlei-roth.de
Tel. 040/317 97 380
Fax: 040/31 27 84
Johannisbollwerk 20
20459 Hamburg
