Power of attorney
July 24, 2009 | 25,00 EUR | answered by Andreas Scholz
Hello,
I work in the credit and surety business as a clerk and issue guarantees for almost all areas, such as rental, defects, deposits, contract fulfillments, and many others.
Now my colleagues and I are supposed to receive signing authority - in part without limit - and of course with very different texts, some of which we do not even know the legal contents (since paragraphs are mentioned).
Now my question is: what could be the consequences for us if a guarantee is drawn and our company is claimed against. Can the company claim against us?
Could we be dismissed as a result?
And what if we want a certificate stating that the company waives its right to hold us liable. Would that be a possibility?
I would appreciate a prompt response, as this is supposed to come into effect on Monday. We were notified of this via email yesterday.
Thank you and kind regards,
Ursula
Dear questioner,
First of all, your liability for damages caused to your employer due to your actions is limited according to the degree of your fault. The labor law jurisprudence has developed different liability levels: if you act with slight negligence, you are generally not liable.
In case of normal negligence, liability is shared based on fairness considerations according to a certain ratio. It is crucial to determine to what extent your activities are "danger-prone" and to what extent the employer is obligated to protect themselves, for example, through insurance.
If you act with gross negligence or even intentionally, you will be liable for the entire damage.
It is also a general rule that you must be given a warning before being terminated. A single breach of duty usually does not justify termination.
However, this leads us to the next topic. By granting a power of attorney, it is possible that the (main) duties that you are required to fulfill in your work are actually expanded, even if this is not expressly stated in your employment contract. The extent of mutual main performance obligations is not subject to the general directive authority of the employer. Therefore, if granting a signing authorization is also associated with a new obligation to extensively review the guarantee request, which is not part of the current employment contract, this approach is indeed questionable because it requires you to take responsibility for an activity for which you may not be trained. In any case, an obligation to new/different main performances is only possible within the framework of a new employment contract, so the existing contract would need to be terminated.
I ask for your understanding that I do not know the content of the employment contract or the email, so I cannot assess from here the actual significance of the signing authorization you mentioned in your employment relationship, or whether the authorization you mentioned actually implies a legally binding authorization for the employer. It is possible that simply granting the authorization does not create a new main obligation for you.
To provide a comprehensive answer to your case, it would be necessary to know both the employment contract and the purpose and content of the authorization granted.
It is indeed possible to obtain a liability waiver from your employer, although it may not be common practice on the employer's side.
I recommend that you have your employment contract reviewed in relation to the delegation of powers. Your works council can assist you further in this matter.
I hope I could provide you with some initial legal guidance. If you have any further questions, feel free to ask.
Best regards,
Andreas Scholz, Attorney
