If there is a suspicion of a crime or administrative offense, an investigation is initiated – regardless of the actual guilt or innocence of the suspect. In order to protect your own corporate image, employers often distance yourself and see only one way out: the termination.
Right to employment
However, the termination of an employee who presumably behaved is not that easy. On the contrary: “The presumption of innocence applies in the investigation. The existence of an investigation alone is therefore not a reason for termination,” Peter Meyer told the General-Anzeiger. Meyer is a specialist lawyer for labor law in Berlin and a member of the executive committee of the Working Group on Labor Law in the German Lawyers’ Association (DAV). Also Dr. Markus Diepold, lawyer and specialist lawyer for labor law in the Dentons law firm in Berlin, takes this view. In an interview with Haufe.de, he explains that the employee has the right to work, which is why the employer needs a factual reason for both termination and exemption. The initiation of an investigation is not such a reason.
Especially in the case of extraordinary or without notice, important prerequisites in accordance with paragraph 626 BGB: It is only right if “facts are available due to which the termination of the employment relationship, taking into account the termination of all circumstances and considering the interests of both parts of the contract, the continuation of the employment relationship until the termination deadline or until the agreed termination of the employment relationship is not granted can.” If the employee has been caught or even convicted in the act, it can be assumed that there is such a fact. “In these cases, most employers express termination without notice in the event of a corresponding severity of the crime,” said Diepold.
Always a individual decision
However, Meyer emphasizes that a termination is not justified if it is a fine or the crime or the administrative offense has nothing to do with the professional activity: “For example, an accountant who is losing his driver’s license due to drunk driving in leisure time can be further. But the bus driver who is convicted of a traffic offense and loses his driver Business leadership of vehicles in public transport and are terminated depending on the individual case. ” In addition, the employer would not have an obligation to provide information regarding the ongoing investigation or penalties, provided that the criminal act has no relevant action to the professional activity.
Diepold also states in the interview that the principles of protection against dismissal apply. In individual cases, the question always arises whether “extraordinary termination can be pronounced due to the severity of the breach of duty.” According to Diepold, it should first be clarified whether this breach of duty is available in the employment relationship or was found outside. If it is “non -service misconduct”, the effects on the employment relationship should be clarified.
Prote against an illegal termination
If the employee states that the requirements mentioned above are not met, it is possible “to be the legal ineffectiveness of a termination without notice[zu]lead, “said the Federal Ministry of Labor and Social Affairs (BMAS). For this, it is necessary that the employee” within three weeks after receipt of the written termination at the labor court[t] (Paragraph 4 sentence 1 KSchG). “On the part of the employer, it is important to demonstrate evidence in court that justify the termination without notice, says BMAS. In such a case, Peter Meyer always recommends consulting legal assistance.
J. Vogel / Redaktion Finanzen.net