Background – After having worked for 8 years in my current job, my employer has asked me to resign on a mutual agreement basis. Have to add that no reasonable reason has been given for extending this favor to me. I am planning to submit my German nationality application by end of May and do not want it to get jeopardized because of not having a job.

Since this is my first job in Germany, I am not sure how this whole termination process works and would appreciate to have your views on my below questions:

a. Can I refuse to accept this offer to resign on mutual agreement basis?

b. If yes, then what can the employer do next and what are my options? Keeping in mind that my employer has told me that if I refuse they will force me out by finding some reason.

c. Does my German nationality application gets jeopardized by any of the following status’es: “if I get into a legal litigation with my employer over this termination” or “if I accept this termination offer and end up in my Kundigungfrist period” or “if I am without job and receiving Arbeitlosengeld”. Btw, I will be applying from Hessen.

d. My employer wants to offer me a compensation package if I accept to resign mutually. “Being a Manager + worked for 8 years as a permanent employee in this firm + married + have a kid” what is the best compensation package (i.e. certain number of monthly salary) I can demand for accepting this offer? Btw, I have a fixed and unlimited employment contract.

e. As a part of this compensation package, my employer wants me to forget my accumulated vacation and any payment for it. They want me to focus on the basic compensation package only (i.e. certain number of monthly salary). Is this really legal and normal in such cases?

f. If I refuse this offer and go to court for a legal litigation, how many months at minimum am I looking at before any judgement would be given for this case? And will I continue to receive my monthly salary during this litigation period?

g. If I do accept this offer & compensation package, how best can I save any monster taxes which might get levied on this severance payment?

h. My company is again and again stressing on importance of the employer reference letter they will give to me for searching for another job. How important is this letter in Germany to find another job and can my employer screw up this letter if we end up going into legal litigation?

i. Can anyone recommend any excellent Arbeitsrecht lawyer (who provides services in English as well)?

j. During the litigation period, am I allowed to travel outside of Germany for some time without taking time off from my accumulated vacation time?

k. What is the normal outcome of such litigations? Is it that the court asks the employer to take back the employee or the court orders the employer to pay a certain severance package to the employee and end the employer relationship?

l. If I accept this offer to resign, am I still eligible to receive Arbeitslosengeld from the Arbeitsamt?

m. Lastly, does anyone know how long does it take to process a German nationality application in Hessen?

Thanks in advance for sharing your views.

a. Can I refuse to accept this offer to resign on mutual agreement basis?

Yes. I can tell you whatever you do, don't resign! If you resign, you also forfeit the social help for 3 months. It is not very easy to fire people in Germany especially after 8 years of service. Get a lawyer to advice you on thsi but do not resign without consulting a good lawyer first. At the very least they should cough some compensation and for 8 years this could be many thousand of Euros!

b. If yes, then what can the employer do next and what are my options? Keeping in mind that my employer has told me that if I refuse they will force me out by finding some reason.

Ask them to tell you this in an email ;) This is simply bluff If it was easy to fire you, they would have fired you. They are threatening you just to scare you into resigning! Again, do not do anything without consulting a lawyer!

c. Does my German nationality application gets jeopardized by any of the following status’es: “if I get into a legal litigation with my employer over this termination” or “if I accept this termination offer and end up in my Kundigungfrist period” or “if I am without job and receiving Arbeitlosengeld”. Btw, I will be applying from Hessen.

Yes, the Einbürgerung approval could certainly be delayed. This is regardless of whether they fire you or you leave on your own accord. So, it will not help if you leave as well.

d. My employer wants to offer me a compensation package if I accept to resign mutually. “Being a Manager + worked for 8 years as a permanent employee in this firm + married + have a kid” what is the best compensation package (i.e. certain number of monthly salary) I can demand for accepting this offer? Btw, I have a fixed and unlimited employment contract.

Ask a lawyer about this but as I said before it will be a substantial amount.

e. As a part of this compensation package, my employer wants me to forget my accumulated vacation and any payment for it. They want me to focus on the basic compensation package only (i.e. certain number of monthly salary). Is this really legal and normal in such cases?

Nothing your employer is doing seems legal to me. They certainly are bullying you.


f. If I refuse this offer and go to court for a legal litigation, how many months at minimum am I looking at before any judgement would be given for this case? And will I continue to receive my monthly salary during this litigation period?

Lawyer question again. I think you should still receive your salary. You probably do not have to go to court. The fact that you serve a court notice should be enough. See, your employers have no interest in going to court. They will most probably lose this case. See a lawyer without delay!

g. If I do accept this offer & compensation package, how best can I save any monster taxes which might get levied on this severance payment?

I had this many years ago and had to pay taxes. I would not concentrate on this package till I have had a chat with a lawyer.

h. My company is again and again stressing on importance of the employer reference letter they will give to me for searching for another job. How important is this letter in Germany to find another job and can my employer screw up this letter if we end up going into legal litigation?

Scare tactics. Pay no attention. I mean this is plain illegal what they are doing by bullying you around like this! The fact is that you worked there 8 years and no one keeps one around for that long if they were not efficient. They are simply scaring you. Do not give in and tell all this to your lawyer.

j. During the litigation period, am I allowed to travel outside of Germany for some time without taking time off from my accumulated vacation time?

You probably will have to be at work and if you take time off it will come off the vacation days. You certainly are "allowed" to travel anywhere. You are the victim, remember? ;)

k. What is the normal outcome of such litigations? Is it that the court asks the employer to take back the employee or the court orders the employer to pay a certain severance package to the employee and end the employer relationship?

I think if you threaten to go to court, your employer would sweeten your severance package at the very least. Seek a alwyer immediately.


l. If I accept this offer to resign, am I still eligible to receive Arbeitslosengeld from the Arbeitsamt?

Not for 3 months! So do not resign and they cannot fire you like this.

m. Lastly, does anyone know how long does it take to process a German nationality application in Hessen?

No idea.


Bottom line: Get a lawyer ASAP and do not sign or send any emails that might even suggest that you are thinking of leaving. Try and keep all communication through email and save them to your private account. Do not get bullied.

All the best!

just for H point

that letter is important but u can go to lawyer if the company give u bad letter.
And if company really want to give u bad than its very tough for even lawyer to make it correct.

there are code words in the letter that dosent seems to look bad but other employer can easily understand it.
i.e The person was doing his work very very good and we are very very happy that he is leaving us something like that.

I had the same prob,i post my letter in one online bewertung seit and people rated it as Note 3.
I want back the employer and tell that i want my own format letter from them,as i left the company in peace and both party were happy ,my company agree to give me letter in my own format.
--
One solution is to get the job befor the termination happen so that u dont need to show the letter.

@TS u have more problems ahead so letter thing should not be given too much weghtage at this point.

And evenif company gave u bad letter than believe in urself and tell the truth to the next employer but dont send the letter at the time of applying job.(because if u do that they wont even call u for that bad letter)

At the time of interview (when they ask for it)tell them the whole story honestly.

Xenon has given the best answers for your questions.

Being a employer with wife and kids, you should be the last one to get fired before the company goes bankrupt. So dont get intimidated by these guys.

Never accept or sign any documents. Contact a lawyer immediately without fail!! I think they are trying to scare you up becos you are a foreigner and thought you dont know the laws. I would love to be in your position as the compensation can amount to easily a years salary. Normally i think it is one month salary for every year of service(called abfindung). Dont worry about the experience letter because they cannot give a bad one. Dont you have a work council in your company?

As a lawyer I can only strongly affirm the views expressed here.

Working for a company with many employees, you are enjoying dismissal protection. That means that the employer has to have specific reasons for terminating your contract. Those could be reasons connected with your person (e.g prolonged illness with no sign of recovery), your conduct (e.g calling your employer a four letter word) or reasons connected with the company itself. Even the latter, company-related reason, e.g. redundancy because of severe lack of orders from clients, has to stand the ground of meeting strong criteria. In addition, the employer generally has to make an evaluation of whom to make redundant. Doing so he has to consider comparable employees with a view to protecting the most vulnerable along certain criteria (e.g employee with kids and family to sustain). If there is a work council, it, too, has to play a part in the termination process. The assessment itself as well as the company-related reason will have to stand the test in court, if the termination is challenged in due time, that is.

http://www.trust7.com/en/foren/visa_questions/layoff_-_two_basics

In your case the employer has not cited a single reason but rather threatened to find one.

In order to circumvent the dismissal protection many employers try to get the employee to agree to dissolve the contract sometimes offering a financial incentive in form of a compensation sometimes uttering intimidating threats or both for good measure.

As a matter of experience it is oftentimes best to challenge a termination in court. One has to bear in mind that often, if both parties want to end the contract, a compensation package is best negotiated in court in form of a settlement, even though the employee has generally no formal claim for a compensation as such. As for the compensation itself, there is no minimum or maximum amount, however usually, as a bench mark, it is half of the monthly income multiplied by every year in which the contract has existed. This benchmark is drawn from a change in the law. The change in the law allows the employer who terminates on the ground of company related reasons to bait the employee with a compensation along those lines not to challenge the termination notice in court. If he does, he forfeits the compensation claim.
Of course, there are other claims too that need to be addressed such as vacation compensation, etc. Back to the question of challenging a termination notice, it is always advised to challenge it if the employer is using scaring tactics showing that he has a hidden agenda and his reasons cited for the termination of the contract are only a pretext. Also, agreeing with your employer to dissolve the contract has negative impacts on your later claiming social security.

The employer bears high legal risks when terminating the contract with his employee via termination notice. This is the case, because after serving the notice, even though the employee is not attending work (as he has been dismissed and stays at home), he is still entitled to his full pay check if the court later establishes that the cancellation was invalid.

To conclude, it is also not up to the mood of the employer to issue a reference letter about the work you have done. You are entitled to a proper reference letter on termination of your work contract.


Rechtsanwalt_Jain@yahoo.de

Firstly, many thanks to xenon123, deathinc, raj & Mr. Jain for your replies.

@Raj wrote: "Dont you have a work council in your company?"
-> Unfortunately not, even though we are eligible to have one.

@Mr. Jain wrote: "2. If a termination notice is not challenged in due course it will become valid by law even though the termination was actually legally flawed and thus invalid. Usually this means to take specific action in court no later than three weeks after having been served the termination letter."
-> My employer called me in for a meeting, broke this news to me and gave me this mutual resignation contract (without any signatures on it from their side) and asked me to decide whether I want to accept it and gave me 2 weeks for that. I assume this does not mean serving a notice to me, as explained above by you. Please confirm?

Secondly, what happens when they send the termination notice via normal (or registered) post to you but since you are out of the town or country, you only get to read it after 3 weeks. Is there still no room to challenge that termination notice?

1. The handing out of the mutual agreement is not equivalent to a termination notice.

2. Practically speaking, as soon as the notice is handed out to you or gets into your letter box, the notice has been served.There are legal provisions along which you can challenge a termination notice even after the three week period. It is required that despite applying all due care and with no fault of your own you had been unable to observe the three week dead line to challenge the notice in court. Generally that is the case for an employee who unexpectedly finds a notice in his letter box after returning home from holidays. He then has to file the case within two weeks after returning. However, I would not rely on this in your particular case since you are now confronted with a situation where you have to expect a notice in the weeks ahead.

been there - done that. Simple brutal negotiations. Determin the "value" to the management of you leaving, cost of alternative methods (like courts or normal process) and drill em for every penny. Some pushed too far and the employer dropped the termniation against them and closed the company 9 months later. I negotiated about 1yr pay and got out ASAP, into a new job in under 6 months. pocket the rest. and are now jobhunting during massive recession (as you will be).

BE SURE to negotaite every word in your termination contract. I had a workers Council friend word the contract in a way that avoided the 3 month Arbeitsloss geld penalty. Also negotiated my Zuegnis, until it was "accurate" to me. A native german speaker in your technical field is required to filter hidden messages.

I GOT LUCKY - My work permit is fixed to the firm. no firm - no permit. Technically I and my family were instant tourists. We could have been denied Arbeitslossgeld. The nice person at AuslandersAMT gave me a permanent sticker. It helps that I moved out of the city in a small village. Gov offices are much less stressfull but people more xenophobic. Overall - much better than in the city. If it happened again I would consider moving into a village again JUST for the less combative AuslanderAMT personell.

Gotta pay taxes. In fact taxes were removed automatically, same as for paychecks. The 6 month overlapp will likely make my taxes much higher this year. I would conser leaving the country (unless you love it here) - might get that tax back. Check with a tax pro (NOT a Steuerhelfer).

Important to keep in mind that WHILE this is going on you MUST be a perfect employee. NEver be late, come everyday, smile, do you job, play very conservative, take no chances/risks, leave your anger at home come to work happy.

Lawyer might help, waste of money for me but mayeb I was lucky.

Hi napalongcasidy,

Thanks for your reply first of all.

You having been in this position before, I would really appreciate to talk to you. If possible, please email me at getin.jiggy@gmail.com so that we can arrange an opportunity for a quick discussion over phone.

In any case, thanks for taking time to reply.