Length of service 20 years, termination.
February 23, 2012 | 30,00 EUR | answered by Bernhard Müller
Hello.
Since 1.9.1992, I have been employed in a company that consists of several independent business units without interruption. I have changed employers several times within these structures, so I always received a termination agreement first and then a new employment contract, but it was always mentioned that the length of service would be transferred! Therefore, I assume that I have acquired a 20-year length of service by 30.8.2012.
I signed my last employment contract for a 106-hour position. The company was aware that as a single mother of my now 8-year-old son, I can no longer work – and don't want to.
Due to the very positive business development (which I am well aware of), the managing director now presented me with the choice of starting a full-time position with 173 hours by the summer – if I do not agree, we would have to part ways.
I would like to look for another job – especially closer to my place of residence, but I do not know if I should "provoke" a termination for financial reasons – and above all: how, without leaving on bad terms after such a long association. Can I simply refuse and say that I cannot work any longer for the reasons mentioned?
Should I "hold out" until 31.8.12 so that I am entitled to a severance payment?
If I resign, do I lose the right to a severance payment?
How should I act?
I look forward to your response.
Thank you in advance.
Dear questioner,
The right to a severance payment under § 1a KSchG exists if the termination is due to urgent operational requirements, you do not file a dismissal protection lawsuit, and the employer's termination notice contains a reference to the severance payment. The length of service in the company is only relevant for the amount of the severance payment. It amounts to 0.5 monthly earnings per year of the existence of the employment relationship. Periods of more than 6 months are rounded up to one year. Therefore, you only need to hold out until March to receive the severance payment for 20 years.
If your employer's termination notice does not contain a reference to a severance payment, you must file a dismissal protection lawsuit at the labor court within 3 weeks of receiving the termination. The labor court can then determine that the employment relationship has not been terminated by the dismissal, but that continuing the employment relationship cannot be expected of you. (§9 KSchG) This would also result in a severance payment under § KSchG.
But be aware that under § 10 III KSchG, only the monthly earnings you currently receive in your 106-hour position apply for the amount of the severance payment, not the salary extrapolated to a full-time position.
It is important that you do not resign yourself, but let yourself be dismissed, and that the Dismissal Protection Act applies to your company. This means that more than 5 employees must be employed in your company. Part-time employees are not counted as full employees. In case of doubt, please inform us via the inquiry function about how many employees with which weekly working hours are working in your company.
Simply deny and wait for the operational dismissal is the best course of action if the Dismissal Protection Act applies in your company.
Best regards
Bernhard Müller Attorney
