Text 27623, 102 rader
Skriven 2009-02-18 10:33:52 av Robert Bashe (2:2448/44)
  Kommentar till text 27591 av Michiel van der Vlist (2:280/5555)
Ärende: Contractual restrictions
================================
Michiel van der Vlist wrote to Robert Bashe on Tuesday February 17 2009 at
14:28:

MV> Here it has happened that peple got saddled with contract specifying a
MV> try out period of over two month. During this try out period the
MV> relation can be terminated - by both parties - without cause.

I'm not sure what you mean by "saddled". In Germany, the usual "Probezeit"
(trial period) for low-paying, low-qualification jobs is three months, for
professional jobs (like for chemists) 6 months, and the trend has been to
increase this to up to a year - but that has been in recent times, in the last
3-4 years or so. As a chemist, I never had a trial period of more than 6
months.

MV> The law limits it to a maximum of two month. So a term of three month
MV> is automataicall void. But if the employee does not know that, he may
MV> not contest it.

In Germany, the above is the law. Period. It's written into the contract. It's
not a question of "contesting" it. If an employer (or employee) breaks a
written contract, he's liable for damages. In the case of the employer, the
termination is null and void, and your salary must continue to be paid. In the
case of the employee, you must reimburse the employer for expenses incurred in
employing another person. That can cost you several thousand Euro, but if you
really have a plum of a job elsewhere can be worthwhile.

RB>> Lawsuits are the rule, not the exception, and you can be sure the
RB>> kind of person who would have to sign a non-competition clause in the
RB>> contract would be 100% informed on what is allowed and what is not.
RB>> Such people are not uneducated handymen.

MV> Here lawsuits are not all that common. Most conflicts in this area are
MV> settled by arbitration.

Be happy. The courts are overloaded with such stuff in Germany, and most
involuntary terminations end with payment of fairly substantial "damages"
(typical: three months' salary) to the (former) employee. People don't
generally insist on re-employment, since everyone makes mistakes and if an
employer really wants to get rid of an employee, all he has to do is wait until
the employee makes a legally terminable mistake.

MV> In fact most people work under so called "collective contracts" They
MV> are drawn up by the unions. Plus that it is not uncommon to have no
MV> contract at all. A contract is not legally required. The mere fact
MV> that you do the job and get regular payments establishes the legal
MV> basis for protection under the employment laws.

Everyone has a contract in Germany. If there is no written contract, the BGB
rules apply, and if anything are more favorable to the employee than a written
contract.

MV> I once had a job terminated in court, so I know the ropes...

I had a couple terminated in court, and had to be persuaded to sue my former
employer the first time, since I thought that was "dishonorable". American
upbringing, I guess.

RB>> In fact, the usual reaction in Germany would be to interpret your
RB>> statement as a voluntary termination. Such things have happened, and
RB>> have been upheld by the courts.

MV> So in that case the bluff backfired. But if he was nit bluffing there
MV> was no harm done to the employee. He took the job that was offfereed
MV> by the competition.

That's the way things go. If you have a full hand of aces, you have nothing to
lose.

RB>> You also ignore the "grapevine" that exists among companies. Any
RB>> claim you make would be checked out in a private phone call from one
RB>> department manager to another, or one general manager to another

MV> That would not work if I did not mention the name of the competion.

In that case, nobody here would believe you to begin with. Anyone can claim to
have a better offer from "competition".

RB>> - and if it turned out you were trying to put pressure on your
RB>> current employer to increase your salary by citing an offer from
RB>> another company, you might just find yourself without either a job
RB>> _or_ an offer. Employers don't like to be blackmailed, or to be used
RB>> for blackmail.

MV> Neither do employees, but why do you assume that I would be bluffing?

Because a lot of this goes on. Who doesn't want more money for his job?

MV> The risk is with the employee. A good incentive not to bluff.

Very true.

MV> Ok, a better strategy if I have not actually got an offer yet is: He
MV> Boss, I think I deserve a raise. If he says no, I say that I think I
MV> can get a better paid job elsewhere and so if he will not negotiate a
MV> raise I will start looking for it.

Frankly, I'd take the other job. Too much possible bad blood otherwise.

Cheers, Bob

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