Disciplinary Dismissal Grounds and Article 54 ET Rules

Disciplinary Dismissal and Article 54 of the ET

Disciplinary dismissal is governed by Article 54 of the Workers' Statute (ET). It is a dismissal where the employer unilaterally terminates the contract due to a serious and culpable breach by the worker. There must always be a correspondence between the penalty and the offense, satisfying the principle of proportionality in the application of this ultimate sanction.

Legal Causes and the General Clause

Article 54 outlines several specific causes, complemented by a general open clause regarding the transgression of good faith and breach of trust. This serves as a "mixed bag" that encompasses various violations. It is important to note that this regime does not follow the current sanctions of criminal or administrative law, which strictly apply the principle of legality.

Specific Grounds for Termination

The primary causes for disciplinary dismissal include:

• Absences or lateness: These are required to be repeated and unjustified. If they are justified, the dismissal would instead fall under the objective environment.
• Verbal abuse or criticism: This includes offenses directed at people within the company or relatives living with them. While this provision may seem somewhat archaic, these offenses often occur specifically toward colleagues.
• Decline in performance: A steady and voluntary decrease in normal or agreed-upon work performance. It is necessary to appreciate the gravity and voluntary nature of the act; if the decrease in performance is involuntary, it would be treated as a case of objective dismissal.
• Substance abuse: Habitual drunkenness or drug addiction, provided they have an adverse impact on job performance.

Evolution of Conduct-Based Sanctions

The treatment of dismissal causes has evolved. Originally, substance abuse was punished as "vicious conduct," serving almost as a moral sanction. Currently, this case is tempered by treating it as a disease; some collective agreements even foresee the costs of detoxification for the worker.

Harassment and Contractual Good Faith

Another cause is harassment based on sex, race, or other forms of discrimination within the company. This provision is drawn up in compliance with equality laws, though such behavior was already sanctioned under directives on equality in employment and general non-discrimination. Today, there is an enhanced ability to penalize such conduct, even though it was previously included in the Workers' Statute as a right to non-discrimination.

The Role of Good Faith

The final cause is the violation of contractual good faith and abuse of trust. This is a general clause that qualifies all other causes and serves to include atypical behaviors not specifically provided for, such as theft, fraud, and other similar breaches.