In their daily work, HR managers are often faced with the challenge of making redundancies legally secure. The distinction between ordinary and extraordinary termination plays an important role here. This is because the legislator makes clear guidelines as to when, which type of termination is justified. This serves to protect employees from unfair dismissals, as dismissal affects them harder in many cases. The employee can also terminate the employment relationship on his own initiative in an ordinary and extraordinary manner. But what is the difference between ordinary and extraordinary termination, and what should HR pay be aware of?
In this article, we briefly address the key differences between these two types of termination and answer frequently asked questions about this topic. If you'd like to learn more about these types of cancellation, check out our blog posts on ordinary termination and extraordinary termination more detailed information.
The Difference
In the case of an ordinary termination, either the employer or the employee usually unilaterally terminates an employment relationship concluded for an indefinite period of time. In doing so, the terminator must comply with the statutory notice periods, unless other deadlines have been agreed in an employment or collective agreement (Section 622 Civil Code (BGB)). This period is intended to give both parties time to prepare for the termination of the employment relationship.
In the case of an extraordinary termination, on the other hand, in many cases, termination is without notice. This means that the employer or employee can terminate the employment relationship with immediate effect. He is therefore not bound to a period of notice. However, this is only possible if, objectively speaking, there are facts which, even after weighing up the interests of both sides, would make continued employment unacceptable for the terminator (Section 626 (1) BGB). The terminator must therefore be able to present an important reason in order to be able to effectively end the employment relationship from one day to the next. For this reason, extraordinary termination is often referred to as termination without notice or termination for good cause.
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Reasons for ordinary and extraordinary terminations
To avoid misunderstandings: Does the Protection against dismissal, even in the event of ordinary dismissal, the employer needs a valid and comprehensible reason to be able to effectively end the employment relationship and to socially justify the dismissal. After Section 1, Paragraph 2Section 1 Paragraph 2 Dismissal Protection Act (KSchG) Is dismissal socially justified if it is based on urgent operational requirements or in the person or conduct of the employee. It is therefore also referred to as Operational, personal or behavioural terminations. The Dismissal Protection Act generally applies if the employee is employed continuously in the company or company for more than six months (Section 1, Paragraph 1Section 1 Paragraph 1 Consumer Protection Act) and from a company size of more than ten regularly employed workers (Section 23 (1) Consumer Protection Act). If the Dismissal Protection Act does not apply, the employer can generally terminate the employment relationship properly without giving reasons.
In the case of extraordinary termination, on the other hand, the reason for termination always plays a central role.
Termination periods for ordinary and extraordinary cancellations
If the employer wishes to terminate the employment relationship properly, he must comply with the notice periods, as I said. If these are neither covered by collective bargaining nor in the employment contract, a notice period of four weeks or 28 days at the 15th or the end of the month (Section 622 (1) BGB). This period is extended with the length of service. If the ordinary dismissal comes from the employee, he too must comply with the contractually agreed or statutory deadlines.
In the event of an extraordinary termination, the employment relationship is usually terminated without notice, unless the termination is with a so-called social expiry period connected. This may be the case, for example, in the case of employment contracts agreed in a collective agreement and cannot be terminated properly. The expiry period often corresponds to the ordinary period of notice.
What are the principles of termination regardless of the different types of termination?
Regardless of whether the employer wants to terminate the employment relationship on time or without notice, there are certain requirements that he must comply with.
- Proportionality of termination: The termination must be proportionate. It must therefore only be used as a last resort. Before giving notice of dismissal, the employer must therefore always check whether there are more lenient means of possibly continuing the employment relationship after all. A warning from the employer, an internal transfer or, in the case of extraordinary termination, an ordinary (timely) dismissal may be considered as more lenient means.
- Involvement of the works' council: If a works' council has been elected in the company, it must be informed of the termination plan. This applies to both ordinary and extraordinary terminations. In the event of an ordinary dismissal, the works' council has one week to comment and, if necessary, to object to the dismissal. In the event of an extraordinary termination, he only has three calendar days to raise concerns.
- Special protection against dismissal: If an employee has special protection against dismissal (for example due to pregnancy, parental leave or severe disability), certain formalities must be observed for effective dismissal. Regardless of whether he wishes to end the employment relationship properly or extraordinarily, the employer must obtain the approval of the competent authority before giving notice of termination.
- Written form of termination: In accordance with Section 623 BGB, termination must always be declared in writing. It is therefore not enough to send them via email or messenger. In addition, the employer or a person entitled to dismissal must personally sign the letter of termination.
Frequently asked questions about ordinary and extraordinary termination
Under which circumstances can an extraordinary dismissal be legally justified?
An extraordinary dismissal may be legally justified if there is an important reason for the immediate termination of the employment relationship (Section 626 (1) BGB). Such a reason may be, for example, a significant breach of duty by the employee, which makes the continuation of the employment relationship unreasonable for the employer. The same applies if the employer grossly breaches his obligations, for example through repeated late payments. This can then be an important reason for an extraordinary dismissal by the employee.
How do the notice periods differ for ordinary and extraordinary termination?
While the employer or employee must comply with certain statutory, collective or employment contract notice periods in the event of an ordinary dismissal, he is not bound by any deadline in the event of an extraordinary dismissal. In principle, he can terminate the employment relationship with immediate effect for good cause.
What rights does the employee have in the event of an extraordinary dismissal by the employer?
The employee has the right to file an action for protection against dismissal with the competent labor court within three weeks of receipt of the notice of dismissal (§ 4 KSchG). This then checks whether the dismissal is socially justified and effective.
Can the employee file an action for protection against dismissal only in the event of an extraordinary dismissal?
The employee can defend himself against any dismissal with an action for protection against dismissal. In principle, he can bring an action for protection against dismissal before the labor court if he considers his employer's dismissal to be unjustified or legally ineffective. As a rule, he has three weeks after receipt of the notice of termination.
Do reasons have to be given in the event of ordinary or extraordinary termination?
No, it is not mandatory to state the reasons for termination in the letter of termination. However, in accordance with Section 1 (3) of the Consumer Protection Act, the employee may request a written explanation of the reasons that led to the dismissal.
The differences — a quick overview of the most important
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