Fixed-term employment contract and termination
July 31, 2009 | 75,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Following situation:
Initial fixed-term contract from 01.02.08 to 31.07.08
New fixed-term contract from 01.08.08 to 31.01.09
Next fixed-term contract from 01.02.09 to 30.05.09
On 01.06.09, the FOURTH fixed-term contract until 30.11.2009
The contracts only state: "... we are extending the contract once again in accordance with the law on part-time and fixed-term employment, until..."
No reasons or explanations are provided in the contracts.
1. Question: Is it legally permissible to have 4x fixed-term contracts without a valid reason in the employment contract, or could it possibly be considered indefinite now?
Today I received a termination notice for 31.08.09.
2. Question: Is it possible with fixed-term contracts?
Reason for termination:
On 20 and 21, I was on sick leave, but lost the sick note and my doctor was on vacation, so I couldn't get a new one. On the 24th, I was still unwell and got a sick note for the 23rd to the 29th, which I hung on my employer's office door on the 25th, as usual. I also called in the evening on the 25th and left a message on the supervisor's voicemail to inform him in advance. Now the employer claims there was no sick note and that I only called on Monday. I received a notice to return to work on the 30th, which I complied with, had a discussion, and provided a copy of the sick note (proof from the health insurance). I clarified the situation, but today the employer terminated my contract as mentioned above. There was an agreement that I should sign, stating that I would be on paid leave in August but waive my right to legal action, etc. I did not sign anything and only acknowledged receipt of the termination notice. What should I do now? Shouldn't there have been a warning first, if necessary, as there have been no warnings or similar actions against me so far? I told my employer that I would continue to work as usual.
Should I file a lawsuit or what should be the next steps?
Is it even possible to terminate a fixed-term employment contract (aside from immediate termination)? The employment contract states that the legal provisions of sections 622 and 626 of the Civil Code apply to termination, even in the case of a fixed-term contract.
I already have legal expenses insurance coverage and would be willing to pass on this case to you if you are interested. Please respond urgently.
Dear inquirer,
Thank you for your inquiry!
I would like to address your question considering the information provided and your commitment as follows:
1.) Question: Is it legally okay or possibly now indefinite to have a fixed-term contract 4 times in a row without a specific reason?
A fixed-term employment contract may be extended or renewed a maximum of 3 times. Since in your case the fourth extension has already taken place, your fixed-term employment relationship has been converted into an indefinite one.
This means that the employment relationship does not automatically end with the expiration of the fourth term, but the general notice periods must be observed, either the contractual, the collective agreement (if applicable), or the statutory deadlines under § 622 BGB.
2.) Question: Is termination possible with fixed-term contracts?
Generally, a fixed-term employment contract may not be terminated prematurely, unless there is a provision in the employment contract allowing for early termination.
Without access to your employment contract, I cannot determine if such a provision exists. I would be happy to represent you in this matter and review your employment contract if needed. If further representation is desired, please call me on Monday starting at 11 a.m. at the number provided below to discuss the next steps.
In your case, it seems that the employer is not relying on regular termination, which is generally not allowed with a fixed-term contract, but on extraordinary termination according to § 626 BGB.
Such extraordinary termination is possible even during a fixed-term contract.
The question is whether the termination was formally valid, particularly if the grounds for termination were clearly stated. Without access to the termination letter, I cannot make a final assessment, so it is necessary for me to review the termination letter.
Regarding whether you have properly informed your employer of your extended sick leave in your case, if you have followed past practices of posting it on their door, that should be sufficient, provided you can prove it, for example, by naming witnesses.
Furthermore, your chances are good if you can name a witness confirming that you did indeed speak to the shift leader's voicemail on the evening of the 25th.
Even if you did not inform the employer in time, only a warning, not an extraordinary termination, would have been justified.
This was also the ruling of the Frankfurt Labor Court (case number: 9 Ca 6978/00).
In the case the Labor Court had to decide on, a long-time employee of a company called in sick several times to the boss (by phone). However, he repeatedly submitted his medical certificate late. The employer warned him several times and terminated him without notice.
The judges of the Frankfurt Labor Court ruled that the termination was invalid because the immediate submission of the medical certificate was only a contractual ancillary obligation. Submitting it late, however, could affect sick pay.
Therefore, you should not simply accept the termination. I would be happy to assist you further as mentioned before.
I hope this provides you with some initial legal orientation and wish you success and all the best!
I would like to point out the following:
The legal advice provided is based solely on the information provided by you. My response is only an initial legal assessment of the situation and cannot replace a thorough examination of the facts. By omitting or adding relevant information, a completely different legal assessment may result.
I hope this information has been helpful. You can contact me via email or the follow-up option.
I wish you a pleasant Friday evening and a great weekend!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
