Ask a lawyer on the topic of Labor law

Legal advice regarding labor law question

January 18, 2010 | 20,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla

Dear Sir or Madam,

I would like to ask for your legal advice regarding a labor law issue.
My name is Jong Kuk Lee and I have been working for a Korean company since August 17, 2009.
In my opinion, I have been working diligently and with expertise. My position is a completely new one within the company, making it difficult for me to determine my tasks.

I was hired as a Risk Manager, but I have been unable to fulfill that role as risk management is conducted by the parent company in Korea.
Therefore, I have been assigned other tasks by the company. These tasks have been varied and different, but I believe I have performed them well.

However, since December 22, 2009, I have been under pressure from a manager to leave my current company and work for another. The reason given is due to my personal affairs, which have no impact on my work performance.

Timeline of events:

- June 15, 2009: Conclusion of the employment contract
- August 17, 2009 - September 11, 2009: Commencement of work without a work permit from the Federal Employment Agency
- December 22, 2009: The Logistic Manager, for the first time due to my personal affairs, asks me to voluntarily leave the current company. Instead, he suggested another position at a different company.

- December 28, 2009: Through the job placement efforts of this Logistic Manager, I had an interview at another company. However, the placement was unsuccessful.
- Until now: I have not received a termination notice from my current company. However, I am under pressure to leave. I am unsure until when I can continue working at my current company, most likely until the end of this month.

The issues I find problematic are:

1. Illegal employment from August 17, 2009 - September 11, 2009
2. Violation of labor law

So far, I have not received any verbal or written warnings regarding my work performance. Instead, the Logistic Manager, due to my personal affairs, has asked me to voluntarily resign and find a job at another company.
Especially since the probation period in my contract is set for six months until February 15, 2010. I have not received a written termination notice from my current company.

What I find truly problematic is the way in which the Logistic Manager obtained information about my personal affairs. He conducted secret conversations with people I know, gathering this information and using it to force me to end my employment at the current company.

Furthermore, I question whether he can make such decisions on his own initiative. I suspect he received unofficial approval from the CEO and HR Manager for the implementation and execution of my termination. Unfortunately, there is no works council at my current company to assist me in this matter.

Additionally, there is no connection between my impending termination and poor work performance. If I am

Dr. Dr. Danjel-Philippe Newerla

Dear inquirer,

Thank you for your inquiry!

I would like to address your request as follows:

If I have interpreted your situation correctly, you are currently in the probationary period, which means that you can be terminated within 14 days without stating a reason (and of course, you can also resign).

However, according to § 623 BGB, a termination must be made in writing. Therefore, there is currently no valid termination in your case, and your employment relationship continues as usual.

Regarding whether your conduct justifies termination, I cannot make a definitive conclusion from a distance as I am not familiar with the contractual terms in your company. In general, the employer has the right to terminate. However, they may also authorize the managing director, department head, or area manager to issue the termination.

Whether your behavior is sufficient for termination cannot be definitively assessed based on the information provided. (In this context, I would like to emphasize once again that stating reasons for termination during the probationary period is not necessary).

Generally, an employee's private conduct cannot lead to termination. An exception is if the behavior has a detrimental impact on your work performance or the company's reputation.

Without further information, I cannot assess whether this applies to your situation.

If there is no works council in the company, your only option is to speak with your employer/Managing director.

You could also consider hiring a local lawyer to represent your legal interests and communicate with your employer or managers.

The main issue in your case is that you are still in the probationary period, allowing termination without stating reasons.

I hope my explanations have been helpful. You are welcome to contact me through the follow-up option on this portal or via my email address.

Please note that my legal advice is based solely on the information provided by you. My response is only an initial legal assessment and does not replace a comprehensive review of the situation. Adding or omitting relevant information can lead to a completely different legal assessment.

Have a pleasant Monday afternoon and a successful start to the week!

Kind regards,

Dipl.-Jur. Danjel-Philippe Newerla, Attorney

Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774