Is voluntary severance pay possible during insolvency proceedings?
February 22, 2010 | 20,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
I am in my mid-50s, severely disabled, and have been working for a large trading company for almost 40 years. I have been unable to work for some time now. Last year, I agreed to a termination agreement with a severance payment (due to the financial difficulties of the company). However, the payment did not go through as the employer actually filed for bankruptcy. Therefore, my employment contract is still in place. My incapacity for work continues. In late 2009, I applied for retirement benefits as my sick pay entitlement had been exhausted for several months. I requested a temporary disability pension in the application. The pension provider has now approved this retroactively as a "permanent" pension. I am hopeful that my health will improve and I will be able to work at least part-time in the future. With the current permanent pension, I will lose my job and due to my age, I may never find another one. If my health improves, I would like to work part-time again. At the very least, due to my long service with the company, I do not want to leave without any financial compensation, as my pension is very low. Therefore, I plan to appeal against the permanent pension approval in order to receive a "temporary" one. Assuming my appeal is successful and the pension is temporary, I may be able to keep my job. Therefore, my question is: What are my chances of receiving a small severance payment from a company in bankruptcy? Or are my prospects completely unrealistic, and should I avoid the stress (legal proceedings against the pension provider, etc.)?
Dear inquirer,
Thank you for your inquiry!
I would like to address your question considering the circumstances you have described as follows:
You have contractually agreed to a severance payment, so you generally have a claim to it. Also, no statute of limitations has occurred yet, as the severance payment claim typically expires within three years, which has not even come close to being exceeded.
According to your description, insolvency has been filed, and if the insolvency proceedings are opened, you will only have a claim to a (usually quite low) portion of this severance payment, as the severance payment is considered an insolvency claim.
To assert this claim, you would need to register your claim with the responsible insolvency administrator (you can find out who this is at the competent insolvency court, i.e., the local court where the insolvency proceedings were opened).
Whether this has a chance of success and how much you can ultimately receive depends on how much assets are still available in the company and how many creditors it will be distributed among. Unfortunately, I cannot answer this for you, but the insolvency administrator may be able to assist you in this regard.
I hope I have provided you with some initial legal guidance and wish you the best of luck!
I would like to point out the following:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a full evaluation of the circumstances. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful to you. You are welcome to contact me through the follow-up option on this platform or via my email address.
I wish you a pleasant Tuesday evening!
Sincerely,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
