marginal employment
October 17, 2009 | 30,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
An employee of our company (employed for 11 years) was terminated for operational reasons.
The employment relationship was terminated with a four-month notice period, ending on 30.04.09.
The employee did not file a protection against dismissal lawsuit.
At the employee's request, following this termination, she was offered a new employment contract starting on 01.05. for a minor employment relationship with the note: deployment as needed.
She worked 17 hours in May, earning €190, which was paid.
However, she has not been able to work since then due to a lack of orders caused by the economic crisis.
She has now filed a lawsuit claiming that because she earned €190 once, she is entitled to receive this amount continuously, even if she does not work.
Question 1)
Is the contract with the note 'deployment as needed' unconscionable?
Question 2)
Does the employee have the right to continued payment of the money?
Question 3)
Is she entitled to vacation pay based on the earnings from her previous employment?
Question 4)
What is the notice period for termination in this case?
Dear inquirer,
Thank you very much for your inquiry!
I would be happy to address your questions considering the circumstances you have described as follows:
Question 1)
Is this contract with the note 'use as needed' unconscionable?
In general, the note is inadmissible if no further information about working hours has been provided in the employment contract. However, it is permissible to stipulate that working hours are based on workload. In this case, the weekly number of working hours must be specified. If not, a weekly working time of 12 hours is deemed according to § 12 TzbG.
Question 2)
Does the employee have the right to continue receiving payment?
This depends on the specific content of the employment contract, and therefore cannot be conclusively assessed in a remote initial consultation.
If no weekly working hours are specified in the contract, it could be assumed that the employee is entitled to 12 hours of work per week, which could then be extrapolated to the monthly salary based on the hourly wage.
Question 3)
Is she entitled to vacation pay based on the earnings from her first employment?
When it comes to 'vacation pay,' it is important to distinguish between vacation pay (normal salary that continues to be paid during vacation) and vacation bonus (voluntary additional gratuity from the employer).
The employee would only be entitled to vacation pay if it is stipulated in the current employment contract or if the employer has paid such vacation pay to the employee for at least the last 3 consecutive years.
Question 4)
What is the notice period for termination?
For termination by the employee, a notice period of one month must be observed according to § 622 Abs. 1 BGB. The notice period for the employer is 4 months according to § 622 Abs. 2 S.1 Nr. 4 BGB, unless a longer period is agreed upon in the employment contract.
I hope my explanations have been helpful to you. You are welcome to contact me through the follow-up option on this portal or via my email address.
I would like to point out the following: The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment and cannot replace a comprehensive examination of the case. Adding or omitting relevant information can lead to a completely different legal assessment.
I wish you a pleasant Sunday afternoon!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax.0471/57774
