Friday, 6 November 2009

Losing Your Job

The loss of your job is never an easy time, especially if you're on your own in a strange country. Don't worry, however, because one of the pluses of living in Germany is that it has very pro-employee rights. German employees gain a very strong position immediately the "probezeit" is finished, for which an employee in the UK has to wait for more than two years.

Unfortunately, because of the strength of the German employment laws, it means that companies can become extremely devious in their attempts to oust an employee. It is extremely difficult for a company to fire someone in Germany. Doubtless some of you will have heard of the recent "fired for a Frikadelle" court case, where a German company discharged a long-serving member of staff for taking two left-over Frikadellen, and similar cases where other employees had appropriated old office furniture which had been left out for the garbage. Theft is one of the few cases where a company in Germany can sack an employee immediately, with no notice or compensation, and is often used as an excuse to get rid of someone who couldn't be removed any other way. Hence the proliferation of sackings due to misappropriation of a teabag.

Another problem is the fact that German companies often attempt to play on the ignorance of any foreign employees, hoping that their lack of knowledge of German employment law will allow them to quickly remove them with a minimum of fuss - especially UK and US Nationals, who are used to quick firings. Often they will attempt scare tactics to confuse the employee into signing something that they shouldn't. German law requires that you be given two written warnings - "Abmahnungen" - before you can be fired. However, in Germany, you have the legal right to refuse to accept an Abmahnung. If you are given an Abmahnung, then it is important not to sign it until you are absolutely clear what is contained in the document - especially as German legalese is impenetrable and may be implicating you. Some employers may say that you have no right to take the document with you unless you sign it, and another copy. This is a trick to make you sign it, which means that you have accepted the complaint described therein. An Abmahnung can only be given in a meeting, where you have a representative of the office/works Staff Association there to advise you on your rights as an employee. If your Employer has more than fifty employees, then there should be a Staff Association or Union to represent the Employees. If there isn't, or a rep is not present, then the presentation of the Abmahnung can be considered invalid.

Some German companies will attempt to get rid of people by drawing up an "Abfindung". This is a contract between the Employer and the Employee, stating that the Employer wishes to terminate the Employee's contract, and will offer a compensatory sum and other embellishments to sweeten the deal. Be very careful in accepting an Abfindung, because you may find that you are then "gesperrt" by the Arbeitsamt from receiving Arbeitslosengeld, as you have effectively voluntarily given up your job. Be very wary in accepting an Abfindung unless you have a guaranteed job that you are waiting to take up. Some companies try to get rid of people by claiming that the job they do has "ceased to exist". Don't be fooled by this, because the Arbeitsamt won't be. If the Company is caught advertising for a replacement, then they will assume you have left voluntarily, and you'll be 'gesperrt'.

German companies also have to pay a settlement to anyone who has lost their job. This settlement is roughly half a month's salary for every year that the employee has worked. German companies also have very long notice periods. A lot of companies run the notice from the beginning of the next yearly quarter, so if an employee is sacked at the wrong time, they can end up hanging around for six months, on full pay. The theory behind this is that they then have time to recruit a replacement (who then has to work their notice) and to get you to (hah!) train them. In practice, it is very rare that the employee has to hang around for the whole six months, as they will either have to take all their remaining holiday - if they don't, then the company must pay them in lieu - or just be let off from coming in, because they will very rarely have anything to do. It is also important for the Employee to be very careful what they do in this time frame, especially if you opt to take them to Court (more on that later), because the Employer will be looking for a way to get rid of you, especially if you're likely to turn into a legal embarrasment.

If you are sacked, then you will probably have to take the Company to Court. The Arbeitsamt may insist on you taking your former Employer to Court. This may sound expensive, but there are ways to make sure that it isn't. Firstly, many Germans pay private "Employment insurance" which, in the event of losing their job, will pay any costs incurred. Secondly, the Arbeitsamt itself may carry any costs until such time that you are in a position to pay them back - once you have found another job. Find yourself a good Arbeitsrechtanwalt and turn everything over to them. Bear in mind that the majority of these cases never actually come to Court, as the Company will usually attempt to settle before it goes that far. A court hearing could end up with the Judge ordering the firm to take the employee back - a situation that neither side really wants. You're basically in a staring contest waiting to see who's going to blink first. Often, Companies will again try scare tactics on an employee, saying that they cannot release documents unless the employee waives the court case. Again, don't sign anything, and don't agree to anything without consulting your Anwalt. Witholding certain documents, such as the "Arbeitsbescheinigung" form that an employer has to fill out as part of an ex-employee's Arbeitslosengeld application, or the Lohnsteuerkarte (equivalent to the UK P45 tax paid form), is actually illegal, and can end up netting a whole load of extra trouble for the Company's legal department, should they be stupid enough to try it on.

So just be careful whose Frikadelle you leave teeth-marks on.

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