Entlassung leitender Angestellter: Entlassungsgründe (summary dismissal of senior executives: grounds)

Scope of application

The summary dismissal of senior executives is relevant in the following situations:

• serious breaches of trust, such as breach of trust in the criminal sense, fraud or embezzlement;
• disclosure of business or trade secrets;
• unauthorised dispositions of company assets or dispositions in breach of duty;
• criminal offences to the detriment of the employer or in connection with the executive's work.

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Legal basis

Summary dismissal is based on the following key legal sources:

• § 27 AngG: grounds for the summary dismissal of salaried employees;
• Supreme Court (OGH) case law: in particular on the individual grounds for dismissal, on the special position of trust of senior executives and on the principle that a ground for dismissal must be asserted without delay.

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Deadlines

In the case of summary dismissal, the requirement to act without delay must be observed in particular. As a rule, the dismissal must be declared without undue delay as soon as the relevant facts have been sufficiently clarified. A short period for the necessary clarification of the facts or legal review is permissible, provided this is done promptly. A delay that is not objectively justified can lead to the loss of the right to dismiss.

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Rights and obligations

Rights:

In the case of summary dismissal, both sides have the following rights:

• Employer: the right to end the employment relationship immediately where a statutory ground for dismissal exists;
• Employee: entitlement to a final account and payment of the claims due on termination of the employment relationship;
• Employee: the possibility of having the justification for the dismissal reviewed by a court and, where applicable, asserting claims arising from an unjustified dismissal.

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Obligations:

In connection with declaring a dismissal, the employer in particular is obliged to clarify the relevant facts without undue delay and to assert the ground for dismissal without delay.

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Common mistakes

The following mistakes are made particularly often when senior executives are dismissed:

1. Dismissal declared too late: If, once the relevant facts are sufficiently known, the dismissal is delayed without objective reason, the right to dismiss may be lost.
2. Insufficient documentation: If the ground for dismissal is not sufficiently documented, proving it in later court proceedings can be considerably more difficult.
3. Insufficient clarification of the facts: A dismissal is declared before the underlying facts have been sufficiently clarified.
4. Failure to check the ground for dismissal: Where there is no sufficient ground for dismissal, claims to compensation in lieu of notice and further termination-related claims may arise in particular.

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Recommended steps

A legally sound summary dismissal requires the following steps:

1. Examine the facts without delay: Once a possible ground for dismissal becomes known, the facts must be clarified without undue delay.
2. Check and document the ground for dismissal: Before the dismissal is declared, it should be checked whether a ground for dismissal under § 27 AngG exists. Relevant documents and other evidence should be secured.
3. Declare the dismissal without delay: Once the relevant facts are sufficiently established, the dismissal must generally be declared without undue delay.