Decline termination agreement
February 1, 2011 | 50,00 EUR | answered by Bernhard Müller
Hello,
I have been employed in my company for 5 years without termination (approximately 700 employees, financially healthy). Now, I have been offered a termination agreement taking into account my normal notice period (end of September) and also a severance package (amount not yet specified) because they are no longer satisfied with my performance (they also mentioned that they see significant difficulties for me in other areas of the company and it would probably be better for me to change companies). I have been given time to think about what such a termination agreement could look like for me and where I would like support for job applications.
Since I also want to leave the company, this would have the advantage for me in applying to other companies that my rather long notice period (6 months to the quarter) would be lifted, and there would be a "clean break". The question is whether I can find a new employer by the end of September at all!
As I also pay maintenance for my two children (and they need it!), the risk of becoming unemployed and potentially facing a waiting period for unemployment benefits is too high for me.
I have not done anything wrong in the company, so in my opinion, a proper termination by my employer would not be justified. Therefore, I am inclined not to sign the termination agreement.
However, I also do not want (too much) trouble and would like to find a joint solution with my supervisor and the HR department.
My questions:
1. Can I tell my employer that I will not sign the termination agreement due to the high risk, but that I would like a peaceful solution and to find a new employer as soon as possible?
2. What could my employer's reaction be to this? What options does he have, and how can I respond?
3. How likely is it that my employer will agree to let me go at short notice if I have actually found a new employer when rejecting the termination agreement?
4. What other alternatives could you recommend to me? (perhaps a termination agreement with a longer notice period? Insistence on a new position in the company at the same salary? other possibilities???)
5. What options does my employer have within his management rights? (transfer to another department? immediately or only after the notice period?)
(see also excerpt from my employment contract in the appendix!)
6. Can my salary be cut? If so, when and by how much? (AT allowances?) (see also employment contract in the appendix)
7. If I find a new position in the company or am offered one, would I have to accept a change of employment contract for it?
8. How should I proceed best?
Best regards
Dear inquirer,
I will answer your questions as follows:
1. Yes, you can tell your employer that you will not sign the termination agreement, but you will still look for a new job.
2. The employer may try to enforce a termination with notice of the works council. However, given the size of the company, it is unlikely that he can convincingly argue to the labor court that there is no way to continue employing you within the company. It is more likely that he will look for errors, give you a warning as soon as he believes he has found a mistake, and then issue a termination for behavioral reasons at the next mistake. In order for you to make as many mistakes as possible, he will give you tasks under his right of direction that you are not suited for. You should now have a qualified work reference issued before telling the employer that you will not sign the termination agreement. If the termination comes under any pretext, you can file a protection against dismissal claim at the labor court within 3 weeks (§ 4 KSchG).
3. Your information about the notice periods surprises me a bit. According to § 622 II No. 2 BGB, the notice period for termination by the employer is only 2 months to the end of the month. For termination by you, it is 4 weeks to the fifteenth or the end of a month according to § 622 I BGB. The notice periods of 6 months mentioned by you can only be based on a collective agreement. However, if your employer wants to get rid of you, he will probably also agree to a termination where you do not have to adhere to the notice periods. However, this cannot be guaranteed.
4. I would try to negotiate a higher severance payment and of course request the above-mentioned work reference, as long as the employer is still interested in a peaceful solution. Have the wording of the reference from a colleague checked on site. Because often a "secret language" is used there.
5. Within the scope of the employer's right of direction, he can transfer you to a department from one day to the next. The new task only has to correspond to your qualifications.
6. He has to pay the X euros monthly if he has paid voluntary supplements to the agreed X euros so far, he can cancel them.
7. You can challenge a change in termination just like a normal termination in front of the labor court. You do not have to automatically accept it if you find another position within the company. However, if the other position requires different qualifications than the previous position, it will not be possible without a change in termination.
8. If you sign the termination agreement, it should definitely state that the termination is for operational reasons. Then you will not be blocked. It may only be that the severance payment is converted into x monthly salaries and you have to use it up before you receive unemployment benefits. I would try to find a new job, extend the deadline for signing the termination agreement until I have found something new, and negotiate the amount of the severance payment. Wait to see how much the employer offers, ask for double, and then try to get as much as possible in the negotiations. Once you have found new work, tell the current employer as late as possible. Your employer's interest in getting rid of you is greater than your interest in leaving the company. You should play this card wisely.
Sincerely,
Bernhard Müller Attorney
