Termination of employment of an employee due to exceeding the maximum working hours.
July 2, 2009 | 30,00 EUR | answered by Dr. Lars Nozar
Hello,
my partner works as a chef in a catering establishment. According to his employment contract (198 hours with a 5 day week), the collective wage agreement applies. He works an average of between 9.5 and 12.5 hours a day. Regularly, almost daily, the maximum working time is exceeded due to orders. (Not a seasonal business) Also, no one in this establishment can say in advance when they will finish work, as they work until all orders are completed. (No schedules, no notices of overtime)
The overtime that has accumulated should be compensated either as time off or with an additional payment for extra work, right? Since neither is being done, my partner wants to resign as soon as possible. As the probation period (3 months) has ended, the specific question is whether he can terminate his employment without notice due to violations of the maximum working time (only tolerated, the employer has not confirmed that it is voluntary)?
Thank you in advance.
Hello,
hopefully the employer at least pays for the overtime. He must, and you should also pay attention to this.
Whether an employee is also obligated to work overtime depends on the reasons why it is requested of him. In any case, he is obligated to work overtime based on his duty of loyalty in the employment contract if the employer is in a situation of emergency that cannot be addressed in any other way.
If the emergency situation essentially always exists, then it is not an emergency. And it seems to be the case with you, as a quasi permanent state.
Therefore, you or your partner may refuse to work overtime on the grounds that there is no emergency situation. In that case, the employer may terminate the employment relationship without notice, or you could try to reach a termination agreement.
There is likely no grounds for immediate termination for your partner. The risk of losing would be too high.
I suggest that he only works his regular hours and presents a letter to the employer.
Letter suggestion:
Dear Sir,
For the past xxx weeks, I have had to work overtime almost every day. The occurrence of these overtime hours is predictable; they are not "emergencies". Legally speaking, I am not obligated to work overtime and I hereby announce that I will leave the workplace immediately after completing my daily working hours.
If unforeseeable, short-term emergencies occur, I will, of course, continue to work overtime - but only in such cases.
If you do not agree with this, I reserve the right to terminate my employment without notice. We can also discuss a termination agreement if necessary.
Regards
P.S. I assume you are aware that ordering almost daily overtime can result in fines from authorities. I have not yet contacted the relevant authorities as I trust in your understanding.
You should try this. Otherwise, you should consider giving notice in writing with confirmation of receipt. You can include the following statement in the letter:
"I hereby give notice of termination of the employment relationship at the earliest possible date and kindly request written confirmation of this."
That's it. I hope this helps.
Best regards.
