Inadmissible short-time work - bullying?
November 18, 2009 | 30,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Initial situation:
My employer, a mechanical engineering company with eight subsidiary (sales) companies in Germany, implemented short-time work starting on 01.07.2009.
Since that time, individual departments of the parent company and the individual sales companies have been on short-time work. The percentage of short-time work varies between 20 - 50%, depending on the order situation and economic conditions.
From the beginning, a specific group of people were offered a "voluntary" salary reduction instead of the threatened short-time work. This group consists mainly of executives, sales employees, and individuals on whom the company relies heavily due to their roles. This group is estimated to be around 150 people.
I was also offered a "voluntary" salary reduction starting on 01.07. As an employee in the AT area, I would naturally have to accept a disproportionate salary reduction due to the contribution assessment ceiling if I were to go on short-time work, so I opted for the "voluntary" salary reduction. The company also expects an accumulation of overtime in addition to the salary reduction. This overtime is then taken by the employer at the end of the month without any compensation to the employee.
Due to my role in the company, I have a unique selling proposition and work as an "internal service provider" in the field of Contract Management for the parent company and its subsidiaries. Organizationally, I belong to the "Controlling" department, which is not on short-time work. However, I work for other departments, mainly for sales and the individual sales companies. The sales department is operating at 100%, with the individual sales employees also taking a salary reduction and being exempt from short-time work.
There is sufficient work for me, and sometimes external service providers are also used.
Now, on 01.12., I was the only person (!!) to have the salary reduction terminated by the company. The reason given was cost reasons and insufficient overtime that the company could accumulate.
Question 1:
In addition to objective criteria (...for economic reasons...etc.), are there subjective criteria in the selection of employees affected by short-time work, which could potentially be contested? Is there perhaps a principle of equal treatment here?
My approach is that out of the group of "salary reducers," I am the only person (out of 150 people) who is being put on short-time work. Also, my colleagues in the "Controlling" department do not go on short-time work. Even based on objective criteria, there is no apparent economic reason as there is enough work available (and external service providers are also being used!).
Question 2:
If the HR department now formally requests me to go on short-time work, would I have to possibly object or only go on short-time work "with reservation" in order to not lose rights (in a later legal process)?
Additionally, it seems that my boss is working towards getting rid of me. There are indications that he would like to see my position
Dear inquirer,
Thank you for your inquiry!
Taking into account the information you provided, I would like to answer the questions you asked as follows:
Regarding 1.) Are there subjective criteria in addition to objective criteria (…for economic reasons…etc.) in the selection of employees affected by short-time work, which could potentially be challenged? Is there perhaps a principle of equal treatment here? My approach here is that I am the only person (out of 150 people) in the group of "salary sacrificers" who is supposed to go on short-time work. Also, my colleagues in the "Controlling" department are not on short-time work either. Even based on objective criteria, there doesn't seem to be an economic reason as there is enough work available (and external service providers are also being used!).
In general, the principle of equal treatment applies in all employment law. This means that individual employees must not be treated differently from other employees without a valid reason. If you are the only person out of 150 who is supposed to go on short-time work, then there appears to be a violation of the principle of equality, unless there is a valid justification, which I cannot discern from your description of the situation.
Regardless, you mention that there doesn't seem to be an objective reason - an economic reason for short-time work, as there is enough work available. This could be an indication that the short-time work instrument is being misused in this case. Short-time work essentially means that there is little work available and short-time work is a means to prevent dismissals due to operational reasons and thus to secure jobs.
If this is not the case for you, which cannot be definitively assessed from a distance without knowledge of all relevant facts (at this point, I advise you to engage a colleague experienced in employment law locally to represent your legal interests and clarify the situation conclusively, particularly if you are to be put on short-time work as the situation is very complex), then the short-time work may potentially be abusive, and therefore you should not sign a corresponding short-time work agreement.
Regarding 2.) If the HR department now requests me in writing to go on short-time work, would I need to possibly object or only go on short-time work "with reservation" to not lose rights (in a later process)?
Either you object to the short-time work or you accept it with the reservation that you do not lose corresponding rights regarding the invalidity of the short-time work in a legal process.
The safest option, however, would be to object to the short-time work and not sign a corresponding agreement. Ultimately, as already indicated, you should engage a colleague locally to conclusively clarify the question of the legality of the short-time work.
Regarding 3.) Is there perhaps, with regard to the selection of myself for short-time work, an approach towards the "General Equal Treatment Act (AGG)" or "Bullying"?
Unfortunately, based on your description of the situation, I cannot conclusively assess this. However, if you, unlike the other 150 employees who are not supposed to go on short-time work, belong to a different religion, ethnic background, or similar, then this suspicion would be plausible and would need further investigation.
Regarding 4.) If a termination agreement is agreed between the parties, in doubt the court uses half a month's salary as a benchmark (§ 1a KschG). Is this the contractual salary or the actual monthly salary obtained during short-time work?
This generally refers to the monthly salary agreed upon in the employment contract.
Regarding 5.) How should I proceed? What do you recommend?
Since the situation is very complex, you should engage a colleague experienced in employment law locally to conclusively clarify the legal and factual situation. In my opinion, there are significant indications that short-time work is not necessary and is being instrumentalized for abusive purposes.
I hope my explanations have been helpful to you. Please feel free to contact me through the follow-up option on this portal or via my email address.
I would like to point out the following to you: The legal advice I provide is based solely on the information you provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive examination of the situation. Adding or omitting relevant information could lead to a completely different legal assessment.
I wish you a pleasant Wednesday afternoon!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax.0471/57774
