Bonus payment
November 18, 2009 | 50,00 EUR | answered by Andreas Scholz
Hello!
According to my employment contract, I am entitled to a bonus payment of 2.5% of the net profit generated by my department. In April of this year, I received the bonus payout as usual. However, I received approximately 100,000 euros (gross) less than calculated. There was no written announcement/explanation or additional agreement made with me.
As I have a very good relationship with my employer and wanted to be supportive during these crisis times, I did not object.
Now, a completely different situation has arisen: my employer is no longer able to pay and is seeking a new owner.
My question now to a legal specialist: Can I still claim the difference in my bonus payment, and potentially include this amount in my severance demands in the event of job loss??
Thank you for your assistance and
Regards,
Iris Jänsch
Dear questioner,
since the bonus payment mentioned by you is contractually agreed, you are indeed entitled to a contractual claim for payment of the bonus. Therefore, you still have a payment claim against your employer, as long as your claim for bonus payment has not yet been fulfilled. The existence of this claim is not affected by whether the employer is insolvent or not. The impending insolvency only affects the actual enforceability, in other words, whether your claim will be fully paid out during the liquidation of the company or not. In the case of regular insolvency, this should not be assumed. If it is foreseeable that your employer will cease operations, I advise you to seek legal enforcement as soon as possible. Both the route via the reminder and enforcement procedure and the route via a lawsuit are options, with the former being initially more cost-effective and quicker.
You can also reach a contractual and comparative agreement with the employer regarding the remaining part of the claim. I would advise against silently including the open claim in a calculation of a severance claim prepared by you. For clarity reasons, you should calculate the severance claim separately from the open bonus payment claim to the employer. Additionally, I would like to point out that unless stated in the employment contract, the employer is not legally obligated to pay you severance. Such a claim arises by law only in the event of the judicial dissolution of the employment relationship.
In conclusion, your payment claim still exists and has not been waived by not initially making a claim for it. For enforcement, I recommend seeking legal assistance in titling your claim, especially considering the amount and potential impending insolvency proceedings.
I hope this information has been helpful, feel free to ask if you have any uncertainties.
Best regards,
Andreas Scholz, Attorney
