Disciplinary Dismissal: Legal Grounds and Procedures

Disciplinary Dismissal: Grounds and Conditions

Disciplinary dismissal constitutes a serious breach of contract. For a dismissal to be considered disciplinary, the following conditions must generally be met:

1. The presence of both gravity and culpability.
2. Culpability can be intentional, negligent, or merely careless.
3. Objective and subjective circumstances, as well as historical and contemporary facts serving as grounds for dismissal, must be considered.
4. A principle of proportionality between the act, the employee, and the disciplinary sanction imposed must be applied.

Legal Grounds for Disciplinary Dismissal (ET Art. 54.2)

Article 54.2 of the Workers' Statute (ET) lists the following grounds for disciplinary dismissal under a numerus clausus (closed list):

1. Repeated and unjustified misconduct or untimely attendance at work.
2. Indiscipline or disobedience at work.
3. Verbal or physical offenses against the employer, other workers, or their family members.
4. Breach of contractual good faith, or abuse of trust in the performance of work.
5. Steady and voluntary reduction in work performance below the agreed or usual standard.
6. Habitual drunkenness or drug addiction if they negatively impact work performance.
7. Harassment based on racial or ethnic origin, religion or beliefs, disability, age, sexual orientation, or sexual harassment.

Procedure for Disciplinary Dismissal

1. The Dismissal Letter

   The dismissal must be notified in writing to the employee, clearly stating the motivating facts and the effective date of the dismissal.

2. Dismissal of Staff Representatives

   For staff representatives, it is necessary to open a contradictory file, allowing a hearing for the affected employee and other members of the representation body.

3. Dismissal of Union Members

   If the employer is aware of the employee's union membership, a prior hearing must be granted to the union stewards of that specific union section.

4. Formally Incorrect Dismissal and Possible New Dismissal

   If a dismissal fails to observe formal requirements, a new dismissal may be issued within 20 days. The new dismissal takes effect from its date and opens a new computation of the limitation period for challenging the action.

Effects of Disciplinary Dismissal

1. Adjudication and Challenge

   The employee's dismissal has constitutive effects from its date. The termination of the contract is a disciplinary matter subject to judicial review.

   Once communicated, the dismissal may be challenged by the employee through an application for revocation within 20 working days following the dismissal date.

   When a court receives an application challenging a dismissal, it can declare the dismissal:

   • Justified: The employer has proven the alleged grounds and complied with procedural requirements.
   • Void: The dismissal violates fundamental rights or is discriminatory.
   • Unjustified: In two main cases:
     • The employer has not adequately justified the alleged reason for dismissal.
     • Procedural requirements have not been complied with.