Creditable military service time towards length of service in the company
December 21, 2009 | 100,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Sir or Madam,
I was a soldier in the Bundeswehr from 1.7.1974 to 30.06.1988, initially as a fixed-term soldier until the end of 1984, and then as a professional soldier from the beginning of 1985. I terminated my employment myself on 30.06.1988 and have been working at an industrial company (EADS) since 01.07.1988.
My current employer (EADS) refuses to recognize any Bundeswehr service time, citing legal reasons. They say this would only be possible if I had entered the company as a former fixed-term soldier. My question is whether at least the time during which I was demonstrably (still) a fixed-term soldier (until the end of 1984) could be taken into account?
Best regards,
Thomas Heller
Dear Mr. Thomas,
Thank you for your inquiry!
I would like to respond to your question in consideration of the facts you have provided as follows:
An adjustment under the Soldiers' Supply Act and/or the Job Protection Act is possible.
According to § 8 (1) SVG, an adjustment of seniority is generally only possible if you, as a former soldier (whether regular or career soldier), have been employed in your learned or a comparable profession for at least six months following your military service, with temporary employment in a different profession not taken into account.
In other words, in your case, an adjustment of seniority under the SVG is only possible if the role you have at EADS is related to your learned profession or a comparable one.
Unfortunately, based on the information you have provided, I am unable to definitively assess whether this is the case.
I recommend you inquire with your employer again as to why they believe an adjustment of seniority should not apply to career soldiers based on legal provisions. If needed, I can provide a more conclusive opinion on this through further inquiry.
You could also argue that an adjustment of military service time with regards to seniority is possible under the Job Protection Act. While this generally applies to cases where further education was pursued following military service (whether this applies to you, i.e., whether you underwent training or further education at EADS after your time in the military, is not clear from the information provided), there is a recent ruling from the Federal Labor Court which generally speaks to the adjustment of military service time in relation to seniority.
You could use this ruling as an argument with your employer as well.
I have attached a link to the relevant ruling for your reference:
http://rsw.beck.de/rsw/shop/default.asp?sessionid=91B04AE86463453BAFE3D9AB16334665&docid=218395&docClass=NEWS&site=Arbeitsrechtslexikon&from=AddOn.1066
I have also included the relevant legal provisions for a better understanding of my explanations:
§ 8 Soldiers' Supply Act (SVG)
(1) The time of a measure of occupational training supported under § 5 shall be credited to seniority if the former soldier is employed in the learned or a comparable profession for six months thereafter. Temporary employment in a different profession shall not be taken into account.
...
(6) Paragraphs 1 to 5 shall not apply to former soldiers on time whose service time has been fixed for a period of up to two years or extended beyond this period in accordance with Section 54 (3) of the Soldiers Act.
I would like to point out the following:
The legal advice I have provided is solely based on the information you have provided. My response is only a preliminary legal assessment of the situation and cannot replace a comprehensive evaluation of the facts. Adding or omitting relevant information could lead to a completely different legal assessment.
I hope my explanations have been helpful to you. Feel free to contact me via my email address.
I wish you a pleasant Monday evening and a great start to the week!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
