Conduct-based termination: Contents, Reasons, and Templates 2024

In our working lives, difficult situations can arise that may put our jobs at risk. One such situation is conduct-based termination. But what exactly is conduct-based termination, and what reasons can lead to it?

What are the legal aspects, and how can you defend yourself against it? In this article, we will explore these questions in detail and provide you with tips on how to avoid conduct-based termination in your professional life. So, stay tuned, as this article can help you protect your job and ensure that you are always on the safe side.

I. Introduction

Definition of Conduct-Based Termination

Conduct-based termination is a type of dismissal that results from specific misconduct by the employee. This can occur for a variety of reasons, such as theft, misuse of company resources, bullying, absenteeism and unexcused absence, violation of company policies, failure to meet job responsibilities, or unprofessional behavior.

This type of termination is distinct from other forms of dismissal, such as redundancy (business-related) or dismissals based on personal reasons (person-related).

However, for conduct-based termination to be legally valid, it must meet certain requirements. The employer must be able to prove that the employee's misconduct actually occurred and that it constitutes a serious breach of duty. Additionally, the employer must have taken reasonable steps to address the misconduct, such as issuing a warning.

In Germany, Section 626 of the Civil Code (BGB) governs the conditions for a valid termination and the burden of proof in the termination process. According to this section, the employer is required to prove the employee's misconduct and give the employee an opportunity to defend themselves.

Conduct-based termination should not be taken lightly, and there are always alternatives to termination. Employers should exhaust all available means to address the employee's misconduct before resorting to dismissal.

This includes employee training and awareness programs, clear communication and enforcement of company policies, promoting a positive workplace culture, and monitoring and documenting misconduct.

II. Reasons for Conduct-Based Termination

1. Misconduct Leading to Conduct-Based Termination

Misconduct is a significant reason for conduct-based termination and can take various forms. One common form is theft, which involves the unlawful taking of the employer's property. This can range from small items, such as office supplies, to larger valuables, like electronic devices. It’s important to note that theft can have both legal and employment-related consequences, and a conviction can severely impact the employment relationship.

Another frequent form of misconduct is the misuse of company resources, which refers to the improper use of company property, such as tools, vehicles, phones, and computers. Employees should be aware that the use of company assets is strictly for business purposes, and misuse of these resources is considered serious misconduct.

Bullying is also a common form of misconduct. It refers to the systematic harassment, intimidation, or humiliation of a person by one or more individuals. Bullying can be verbal, non-verbal, physical, or emotional, and it can come from either colleagues or supervisors. Bullying can lead to both legal and employment-related consequences. Employers should enforce a zero-tolerance policy toward bullying and ensure that employees have a safe and accessible way to report or address bullying incidents.

It’s important to note that the legal landscape regarding these types of misconduct can vary from country to country and even across industries. It’s crucial to be familiar with the relevant laws and regulations in your work environment to properly understand misconduct and act accordingly. This also includes knowing the company's policies and procedures in place for dealing with such incidents, as well as the steps taken to address and prevent misconduct. Employees who fear they have been wrongfully accused should act quickly and decisively to protect their rights and interests and defend against unjust accusations.

2. Absenteeism and Unexcused Absence

Absenteeism and unexcused absence are other common forms of misconduct that can lead to conduct-based termination. Absenteeism refers to the number of days an employee fails to show up to work without proper permission or excuse. Unexcused absence refers to missing work without a valid reason.

Both absenteeism and unexcused absence can have negative consequences for both the employee and the employer. For the employee, it can result in financial losses due to missed wages or salary, and it may also affect future career opportunities. For the employer, absenteeism and unexcused absence can disrupt operations, reduce productivity, and negatively affect customer service.

As with other forms of misconduct, certain requirements must be met for a conduct-based termination to be legally valid in cases of absenteeism and unexcused absence. Employers must be able to prove that the employee was indeed absent without permission and that they took reasonable steps to address the behavior, such as issuing a warning or proceeding with immediate termination.

In Germany, Section 626 of the Civil Code (BGB) outlines the conditions for valid termination and the burden of proof in the termination process.

It is important to note, however, that absenteeism and unexcused absence are not always considered misconduct. There may be other reasons for an employee’s absence, such as illness, family issues, or personal circumstances that prevent them from attending work. Employers should always consider the individual circumstances of each case and explore alternative solutions, such as flexible working hours or unpaid leave, before resorting to termination.

Both employers and employees should understand their rights and responsibilities regarding absenteeism and unexcused absence and comply with the relevant laws and regulations. Open and honest communication can help avoid misunderstandings and find solutions that are acceptable to both parties.

3. Violation of Company Policies

A violation of company policies is a form of misconduct that can lead to conduct-based termination. Company policies are rules and regulations established by a company to govern and monitor specific behaviors and practices. These policies can cover various areas such as work practices, safety, data protection, use of company resources, and more.

Employees should familiarize themselves with company policies and adhere to them, as violating these policies can be considered serious misconduct. However, employers must ensure that the policies are clearly communicated and can be understood and followed by all employees. Additionally, company policies should be regularly reviewed and updated to ensure they meet current needs.

Employers must take appropriate steps to address a violation of company policies before resorting to termination. This could include warnings, training, or other corrective actions. In Germany, Section 626 of the Civil Code (BGB) outlines the conditions for a valid termination and the burden of proof in the termination process. It is important for employees to understand their rights and responsibilities regarding company policies, and for employers to ensure their policies and procedures are lawful and fair.

It is also worth noting that not every violation of company policies constitutes direct misconduct—sometimes misunderstandings or ambiguities may arise that need to be addressed. Employers should always consider the individual circumstances of each case before deciding to terminate an employee.

Employers must also ensure that their policies are fair and reasonable, and that they do not violate labor laws or human rights. Open and transparent communication with employees can help resolve misunderstandings and address problems before they lead to conduct-based termination.

4. Failure to Fulfill Job Duties

Failure to fulfill job duties is another form of misconduct that can lead to conduct-based termination. Job duties are the tasks and responsibilities that an employee has agreed to perform as part of their employment contract. These duties can include aspects such as work hours, performance expectations, workplace safety, and more.

Employees are required to meet their job duties and adhere to the agreed-upon performance standards to ensure smooth business operations and fulfill their obligations to the employer. However, failure to fulfill job duties can sometimes be unintentional, such as due to lack of training or unclear expectations.

As with other types of misconduct, certain requirements must be met to make a conduct-based termination legally valid in cases of failure to fulfill job duties. Employers must demonstrate that the employee has indeed failed to meet their duties and that appropriate steps were taken to address the issue. In Germany, Section 626 of the Civil Code (BGB) outlines the conditions for a valid termination and the burden of proof in the termination process.

However, it's important to note that employees are not automatically at fault for every failure to meet their job duties. Sometimes, there are legitimate reasons, such as lack of resources or support, which prevent an employee from fulfilling their responsibilities. Employers should always consider the individual circumstances of each case and seek solutions that are acceptable for both the employee and the company before proceeding with termination. Open and transparent communication can help clarify misunderstandings and resolve issues before they result in termination.

5. Unprofessional Behavior

Unprofessional behavior is a form of misconduct that can lead to conduct-based termination. It refers to a variety of behaviors that are inappropriate, uncomfortable, or unprofessional, and that can negatively impact the integrity, reputation, or operations of the company. Examples include: disrespectful or rude behavior toward colleagues or supervisors, sexual harassment, racist or sexist remarks, bullying, inappropriate social media posts, intoxication at work, breaches of confidentiality agreements, and actions that harm the company’s image.

It is important for employees to always act professionally and follow the company’s rules and expectations. However, unprofessional behavior can sometimes be unintentional, stemming from ignorance or lack of training. Employers should always consider the individual circumstances of each case and take appropriate steps to address the behavior before resorting to termination. This can include warnings, training, or other corrective measures.

It’s important to note that in Germany, Section 626 of the Civil Code (BGB) governs the conditions for a valid termination and the burden of proof in the termination process. Both employees and employers should understand their rights and responsibilities regarding unprofessional behavior and comply with the relevant laws and regulations. Open and honest communication can help prevent misunderstandings and find solutions that are acceptable to both parties.

III. Legal Aspects of Conduct-Based Termination

Requirements for a Valid Termination

A conduct-based termination is a serious decision that can have significant consequences for both the employer and the employee. To issue a valid conduct-based termination, certain requirements must be met. These requirements may vary depending on the country and legal system. In Germany, Section 626 of the Civil Code (BGB) outlines the conditions for a valid termination.

Firstly, the employer must prove that the employee’s misconduct occurred. This means providing concrete and understandable evidence of the employee’s misconduct. Additionally, steps must have been taken to address the behavior before issuing the termination, such as warnings, training, or other corrective measures.

Another key criterion for a valid conduct-based termination is that the employee’s behavior must make it unreasonable for the employer to continue the employment relationship. In other words, the misconduct must be severe enough to render the continuation of the employment intolerable.

Moreover, employers must comply with notice periods, whether specified in employment contracts or required by law, and ensure that the termination is carried out in a formal and legally correct manner. Employers must also ensure that the termination does not violate labor laws or human rights.

It’s important to note that conduct-based termination does not automatically entitle the employee to severance pay, and employees have the right to challenge the termination in court. A labor court can determine whether the termination was lawful and, if applicable, award severance pay. Therefore, employers must ensure that their decisions are fair, legally sound, and compliant with all relevant laws and regulations.

Conduct-based termination is often a last resort for dealing with an employee’s misconduct. Employers should explore other options first, such as issuing warnings, providing training, and taking corrective measures to address the behavior. A conduct-based termination should not be made lightly, and it’s essential that the process is carried out respectfully and thoughtfully.

Burden of Proof in Termination Proceedings

In a termination proceeding, the burden of proof lies with the employer to demonstrate that the employee engaged in misconduct and that the termination is justified for this reason. This means that the employer must provide concrete and understandable evidence to support their claims. Such evidence may include witness statements, documents, or other forms of proof.

In Germany, Section 626 of the Civil Code (BGB) governs the burden of proof in termination proceedings. The employer must prove that the employee was warned about their misconduct before the termination was issued and that the employee was given an opportunity to present their side. Additionally, the employer must demonstrate that they carefully considered the situation and concluded that continuing the employment relationship was unreasonable. It's also important to note that employees can defend themselves against termination and present their own evidence to prove their innocence or argue that the termination is unjustified.

Labor courts generally apply a stricter standard when it comes to conduct-based terminations, due to the significant impact a termination can have on the employee, their family, and future job prospects. Therefore, employers must ensure they have sufficient evidence and present it properly to issue a valid conduct-based termination.

Procedural Requirements

In relation to conduct-based terminations, there are certain procedural requirements that must be followed by both employers and employees. These requirements vary depending on the country and its legal framework. In Germany, Section 626 of the Civil Code (BGB) and other labor laws outline the procedural guidelines for terminations.

First, employers must ensure that they inform the employee of the misconduct before issuing the termination and give them the opportunity to respond. Additionally, employers must take corrective measures, such as issuing warnings, before proceeding with termination.

Employees have the right to challenge a conduct-based termination in court and prove their innocence or argue that the termination was unjustified. Labor courts are required to carefully follow procedural rules and ensure that both sides have the opportunity to present their arguments and evidence. Both parties must adhere to specific deadlines during the process, such as deadlines for submitting documents and attending hearings.

Employers should ensure compliance with relevant labor laws when issuing a conduct-based termination. This includes adhering to notice periods, ensuring the termination is issued in the correct form, and ensuring that the termination does not violate labor laws or human rights.

Adhering to procedural requirements is crucial to ensure that a conduct-based termination is fair and legally valid. Both employers and employees should have the opportunity to present their perspectives, ensuring that the termination process is conducted in a balanced and lawful manner.

Right to Severance Pay in Conduct-Based Termination

In some cases, employees affected by a conduct-based termination may be entitled to severance pay. Severance pay is a form of financial compensation provided to employees for the loss of their job, which can help mitigate the financial impact of the termination. In Germany, there is no statutory entitlement to severance pay; instead, it is typically governed by collective agreements or employment contracts.

Severance pay is not automatically granted in cases of conduct-based termination. It depends on whether the termination was legally justified or not, and whether both parties agreed to severance as part of a settlement. In some cases, a labor court may also award severance pay if it determines that the termination was unjustified.

It’s important to note that the amount of severance typically depends on various factors, such as the length of the employment relationship, the employee’s age, qualifications, and job prospects in the labor market. Severance may be paid as a lump sum or in installments, and in some cases, employees may agree to severance in exchange for a non-disclosure agreement.

Tips for Employees Regarding Severance Pay:

• Check your employment contract or collective agreement: Some employment contracts include severance clauses in the event of termination, which may outline your entitlement to severance.
• Consult with a lawyer: A labor lawyer can help you understand your rights regarding severance pay and assist you in enforcing your claims.
• Consider a settlement agreement: In some cases, negotiating a settlement with your employer to receive severance pay can be a quicker and more cost-effective solution than going to court. However, it is advisable to consult a lawyer before signing any agreements.
  

Legal Defense Options

Employees facing a conduct-based termination have several legal defense options. One option is to seek legal advice from a labor lawyer, who can review the legality of the termination and help pursue a court ruling if necessary. A labor court trial provides the opportunity to present evidence and arguments to prove that the termination was unjustified.

Another option is to seek help from a union representative or a labor law expert. They can provide valuable information and support in asserting your rights and negotiating severance pay or other compensation.

Employees can also opt for an out-of-court settlement by negotiating directly with the employer. This can be faster and more cost-effective than a court trial. However, it is important to consult with a lawyer beforehand to ensure you know your rights and what a fair agreement would look like.

It’s important to remember that each case of conduct-based termination is unique, and there is no one-size-fits-all solution. Employees should be aware of their rights and options early on to develop the best defense strategy. It is also advisable to seek professional support as soon as possible to ensure that all deadlines are met and to put themselves in a strong position should the case go to court.

IV. Prävention von verhaltensbedingten Kündigungen

IV. Prevention of Conduct-Based Termination

One way to avoid conduct-based terminations is through employee training and awareness programs. Employers can offer training sessions to inform employees about relevant laws, company policies, and their rights and obligations within the workplace. This helps prevent misunderstandings and raises awareness of potential issues.

In Germany, there are laws that require employers to provide safety training and data protection training. Additionally, offering training on topics like bullying and sexual harassment can help minimize negative behaviors in the workplace.

Clear communication and transparency within the company can also help avoid conduct-based terminations. Employers should regularly communicate with their employees and ensure that they understand the company's policies and procedures. Being receptive to employees' concerns and addressing issues early can help identify and resolve problems before they escalate into grounds for termination.

Employers can also offer training on time management, stress management, and conflict resolution to support employees in fulfilling their duties professionally. This can help reduce instances of unprofessional behavior or absenteeism, which could otherwise lead to conduct-based termination.

In summary, employee training and awareness are critical tools for addressing and preventing conduct-based terminations. They help both employers and employees understand their rights and responsibilities in the workplace and can help resolve issues early on, avoiding escalation and termination.

Clear Communication and Implementation of Company Policies

Another key strategy for preventing conduct-based terminations is creating a culture of clear communication and consistent implementation of company policies. This starts with ensuring that employees are well informed about company policies and procedures and that they understand their obligations.

Employers should set clear expectations for employees, ensuring that their duties and responsibilities are well defined. This helps employees understand what is expected of them and perform their jobs accordingly.

It is also important to have a quick and effective process for handling complaints and resolving problems. Employers should regularly collect feedback from employees and ensure that all complaints are taken seriously and addressed in a timely manner. This helps identify and solve problems before they escalate into conduct issues requiring termination.

Employers should also apply company policies consistently and fairly. All employees should be treated equally, and issues such as discrimination or favoritism should be avoided. This ensures that employees are treated fairly and that no unjustified terminations occur.

Transparency around company policies and timely communication about any changes are also essential. This allows employees to adapt to new policies and helps avoid misunderstandings. Overall, clear communication and the consistent enforcement of company policies are crucial steps toward preventing conduct-based terminations.

Promoting a Positive Corporate Culture

One key factor in preventing conduct-based terminations is the promotion of a positive corporate culture. A positive corporate culture helps employees feel valued and respected, and fosters a strong connection with the company.

A positive culture begins when employers create an environment where employees can perform their jobs successfully and with satisfaction. This includes providing personal and professional support, and ensuring safe and healthy working conditions.

Recognizing and appreciating employees' contributions is also crucial. When employees feel that their efforts are acknowledged, they are more motivated and engaged, leading to a stronger commitment to the company.

A positive corporate culture also encourages open and respectful communication. Employers should regularly seek feedback from employees and ensure that all voices are heard. This fosters a supportive atmosphere, where employees feel confident to raise concerns before they escalate into issues that could lead to termination.

Moreover, a positive culture promotes teamwork and a sense of solidarity and support. Employers should encourage collaboration among employees and ensure that they can rely on each other. This can reduce feelings of isolation, making employees feel more integrated into the team, which in turn motivates them to contribute positively to the company.

In conclusion, promoting a positive corporate culture is a critical factor in preventing conduct-based terminations. A supportive environment where employees feel valued and respected leads to higher motivation and satisfaction, reducing the risk of behavior that could lead to termination.

Monitoring and Documenting Misconduct

Another essential aspect of preventing conduct-based terminations is monitoring and documenting misconduct. Employers must be vigilant about employees' behavior and thoroughly document any misconduct that occurs.

It is vital for employers to have a clear process for reporting and investigating misconduct. This should allow both employers and employees to file complaints, with a well-defined procedure in place for investigating and resolving issues.

Documenting misconduct is crucial to proving to the employee that misconduct occurred, and it serves as evidence in the termination process. Documentation should be clear, complete, and precise to prevent misunderstandings or misinterpretations. Proper documentation also facilitates the investigation and decision-making process.

Furthermore, it is recommended that misconduct documentation be stored in a secure and protected environment to ensure employee privacy. Only individuals responsible for the investigation and decision-making process should have access to these documents.

Regular training and awareness programs for employees can ensure that they understand company policies and processes and know how to report misconduct.

In summary, monitoring and documenting misconduct are vital components in preventing conduct-based terminations. Careful monitoring and thorough documentation help identify and address misconduct early, preventing it from escalating into a major issue. It also ensures a transparent process for investigation and decision-making in the event of termination.

V. Conclusion

5 Key Takeaways Regarding Conduct-Based Terminations

1. Misconduct as a Cause for Termination: Conduct-based terminations can arise from misconduct such as theft, misuse of company resources, or bullying. It is essential that companies have a clear procedure for reporting and investigating these behaviors to ensure a prompt and appropriate response.
2. Absenteeism and Unexcused Absences: Another factor leading to conduct-based terminations is absenteeism and unexcused absences. Employers should have clear guidelines specifying when absences are considered unexcused and ensure that all employees are informed of these policies.
3. Violation of Company Policies: Violations of company policies can also result in conduct-based terminations. Employers must ensure that all employees are aware of the company's policies and follow them. Regular training and awareness programs can help keep employees informed about these rules.
4. Failure to Fulfill Job Duties: Failure to meet job responsibilities is another cause of conduct-based termination. Employers must ensure that all employees are well-informed of their duties and are performing them correctly. Clear communication and regular monitoring can help ensure compliance with job responsibilities.
5. Training, Communication, and Positive Culture: Training and raising awareness among employees, clear communication, consistent enforcement of company policies, and fostering a positive company culture are crucial in preventing conduct-based terminations. Employers should provide regular training and ensure that employees are aware of company processes and how to report misconduct.

5 Tips for Employees Facing Conduct-Based Termination

1. Know Your Rights: Employees should familiarize themselves with their rights and the legal framework surrounding conduct-based termination. They should also understand what claims they may be entitled to, such as severance pay or a transition period.
2. Gather Evidence: Employees should collect any evidence that supports their innocence or reinforces their arguments. This could include witness statements, emails, work orders, and time records.
3. Follow Company Procedures: Employees should ensure they follow the company's procedure for reporting and investigating termination. Adhering to the company's guidelines can help bolster their case.
4. Seek Support: Employees can reach out to a lawyer, union representative, or HR department for professional advice and support during the process.
5. Stay Polite and Professional: Employees should remain courteous and professional, even in difficult situations. Keeping the dialogue constructive and focusing on the facts rather than emotions can help resolve the issue more efficiently. Maintaining professionalism also improves the likelihood of a positive outcome.

3 Tips for Employers Regarding Conduct-Based Termination

1. Adhere to Company Procedures: Employers must ensure they follow the established company procedures for reporting and investigating misconduct before proceeding with termination. This typically includes holding a formal hearing, documenting the evidence, and adhering to proper notice periods.
2. Gather Sufficient Evidence: Employers should carefully collect enough evidence to support their decision for termination. This may involve gathering witness statements, work orders, emails, and time records. It is crucial to ensure that the evidence is both substantial and credible.
3. Consider Each Case Individually: Employers should always evaluate each case individually to ensure the decision is fair and appropriate. This means taking into account all the circumstances of the case and the employee’s specific situation. Employers should also explore whether there are less severe alternatives to termination before taking action.