Advice needed for Elternzeit dispute

21 posts in this topic

Posted

I can't really help you with the legal issue but I think their excuse that they already hired a person for the full 2 years is BS. Reason: We all know how German employers love short term contracts in order to make it easy to get rid of a new employee who steps out of line. Do you think they hired a new person to replace her in June and gave them a contract until March 2014 right away? I find it unlikely. They probably started them off on a shorter contract, maybe 1 year contract that they could extend. If that is so, they would have the option to offer that person to go part time after that contract is up and job-share with your wife or if that person doesn't want to, hire another person part-time on a 1 year contract.

However, that's if they wanted to and it doesn't seem like they want to. If you want to try to force them to, you'd need a lawyer.

1

Share this post


Link to post
Share on other sites

Posted

Typing this quickly with a 9 month old standing on my foot & bear-hugging my leg.

Wife isn't in a union but we're already getting a lawyer no matter what as what Leon mentioned seems pretty likely; even if they just gave the new person a time contract, giving them a contract for the full two years while knowing that my wife wanted to come back is pretty shady.

Thanks for the heads up on the visa thing, Engle.

Thanks to both of you and I'm open to any relevant suggestions/advice from others.

[Edit: And thanks to the mods for moving this to Legal. Don't know what I was thinking moving this to LIG]

2

Share this post


Link to post
Share on other sites

Posted

We think that's why they had an employee who lived nearby drop it off in case the post was late with all the holiday stuff and it didn't arrive before Dec 28th (it was confirmed in the denial notice that they received our last letter on Nov 28th...skin of their teeth and all that).

Yeah, we've done everything by the book out of a sense of paranoia as this place has given my wife problems before.

Wife has contacted Profamilia already.

Thanks for the advice and references, Panda. :)

0

Share this post


Link to post
Share on other sites

Posted

Hi Synfoola, employers regularly flout the law. If you have legal insurance you can fight it and what would typically happen is this: your employer makes up lies such as the job can't possibly be done part-time or by two part-timers or whatever, letters go back and forth, court date, lies now in person by the employer in the court room, stress for your wife at the lies but at least you're not paying by the hour for the game, then finally an agreement that she gets her money for part time without working :) and then will get fired 3 months after she returns form Elternzeit :(. But no legal insurance then this is a tough one and I'm amazed you're handling it so well so far on your own. Companies regularly hire replacements not mentioning Elternzeit Vertretung and that's their risk. Decent part-time work is very hard to get in Germany and the only ones I know of are 30 hours a week and the people are massively stressed out as the workload is up to 50 hours a week so she can expect to get it though she might have beetr luck than most people. If your wife does indeed lose her job over this, then she's one of thousands in the same boat and she ought to get at absolute minimum her half-time pay plus at least 3 months severance.. 7 years then I'd say double this ... plus a good Zeugnis. Maybe she could ask the Arbeitsamt for some training during some of the time she would have been doing part-time work? It would probably be full-time and not spread out as is better for the family, but maybe put up with a few months of the child shoved in a Kita all day or with a Tagesmutter to get some free schooling for something as there is a good chance she will be fired, but not 100%, the firm might really just hate Eletzernzeit part-timers. Your wife may very well need her unemployment benefits after the Elternzeit is up so I hope she can avoid using them up now. Often employers here do not want to let even one part-timer during Elternzeit even if they like the employee because that would make it harder to deny other part-time requests in the future. They just dump extra workload to the other employees until the replacement gets up to speed. Your paranoia was well founded as this is a common event in Germany. I think an attorney can get your wife paid for the part-time she missed out on plus some severance and a good Zeugnis but the fee is I guesstimate about 4,000 EUR.

0

Share this post


Link to post
Share on other sites

Posted

The worst case scenario, if against all common sense none of the above works, is that your wife can look for a part-time job at another employer for that year, though I have no idea what the job situation is like in your neck of the woods.

Maybe as an Elternzeit-Vetretung, i.e. on a 1 year contract to replace somebody else who went on Elternzeit?

Edit: but she would need her employer's permission to work for another employer during that year.

Judging from what this lawyer wrote here, if her employer denies this permission or if she does not find a job for that year, she can even get unemployment benefits (= about 67% of her net salary, which unlike Elterngeld aren't capped at 1,800€):

  • "Im Fall der Ablehnung können Sie Arbeitslosengeld während der Elternzeit beziehen. Sie sollen sich daher in jedem Fall bei Ihrer Agentur für Arbeit arbeitssuchend melden. Das gilt auch dann wenn Ihr Arbeitgeber Ihnen nur eine Beschäftigung von weniger als 15 Stunden in der Woche anbietet, obwohl Sie mehr arbeiten wollen. "

This was my wife's biggest worry so thanks for the reference, Panda. :)

0

Share this post


Link to post
Share on other sites

Posted

Hi Synfoola, employers regularly flout the law. If you have legal insurance you can fight it and what would typically happen is this: your employer makes up lies such as the job can't possibly be done part-time or by two part-timers or whatever, letters go back and forth, court date, lies now in person by the employer in the court room, stress for your wife at the lies but at least you're not paying by the hour for the game, then finally an agreement that she gets her money for part time without working and then will get fired 3 months after she returns form Elternzeit . But no legal insurance then this is a tough one and I'm amazed you're handling it so well so far on your own. Companies regularly hire replacements not mentioning Elternzeit Vertretung and that's their risk. Decent part-time work is very hard to get in Germany and the only ones I know of are 30 hours a week and the people are massively stressed out as the workload is up to 50 hours a week so she can expect to get it though she might have beetr luck than most people. If your wife does indeed lose her job over this, then she's one of thousands in the same boat and she ought to get at absolute minimum her half-time pay plus at least 3 months severance.. 7 years then I'd say double this ... plus a good Zeugnis. Maybe she could ask the Arbeitsamt for some training during some of the time she would have been doing part-time work? It would probably be full-time and not spread out as is better for the family, but maybe put up with a few months of the child shoved in a Kita all day or with a Tagesmutter to get some free schooling for something as there is a good chance she will be fired, but not 100%, the firm might really just hate Eletzernzeit part-timers. Your wife may very well need her unemployment benefits after the Elternzeit is up so I hope she can avoid using them up now. Often employers here do not want to let even one part-timer during Elternzeit even if they like the employee because that would make it harder to deny other part-time requests in the future. They just dump extra workload to the other employees until the replacement gets up to speed. Your paranoia was well founded as this is a common event in Germany. I think an attorney can get your wife paid for the part-time she missed out on plus some severance and a good Zeugnis but the fee is I guesstimate about 4,000 EUR.

Thanks, Sona. We have legal insurance and money saved up. Too many eye-opening letdowns have happened here in the last 5 years regarding the "benefits" of living in Germany for me not to have saved money in case inevitable drama happened.

4

Share this post


Link to post
Share on other sites

Posted

I have no advice at all, but am pulling for you - or rather your wife, and by extension you and your family - that this gets sorted with the minimum of headache and maximum satisfaction on your end. Don't let the b8stards get you down!

3

Share this post


Link to post
Share on other sites

Posted

Hi there! Hoping someone can shed some light on this matter.

My employer is fighting my return to work after Elternzeit: Slice of humble-pie? Why thank you, Germany. Yes, in fact, I’ll have two!

I’ve been in contact with my employer occasionally during Elternzeit (office visits, etc), and I turned up for a visit just a few weeks before the end of my elternzeit (August) to discuss the terms of my return. The company was moving locations and my boss was too busy to meet so I told her I’d email her. After about a MONTH or so of email tag, phone-tag, hounding the secretary, and trying to ‘catch’ her at the office (she was too busy, went on vaca, etc), we were finally able to speak on the phone and she’d informed me that she has no work for me. I was very upset because I felt as though she’d wasted my time, but ok, fine. I informed her that I just needed a formal letter (as stated by my insurance company) indicating the end of our working relationship and I’ll gladly move on. She’s refusing to write a letter and in addition, wants to terminate our working relationship effective August 2014-the end of my Elternzeit. I’m not sure how she wants to do that since she won’t write a letter but I suppose to her Elternziet ended and I simply don't return. So, things have gone from annoying to awkward. She spent the remainder of our conversation trying to sell me on the idea that I don’t really want to return to work: it’s too far (45min drive) and my schedule has changed (I can only work part-time). She has work for me that will accommodate us both however, she doesn’t think it’s worth it (for me) as I won’t be making much money. It’s all a bit odd.

Now the tricky part: I never had a contract. After my interview, she sent me to the Ausländerbehörde, they put a big ole stamp in my passport which stated that I am able to work legally in Germany under the condition that I am not allowed to work for another company and my visa must be renewed yearly. After the birth of my mini-me, the Ausländerbehörde invalidated that stamp and gave me a residence permit. So I’m not sure where I stand and what rules apply to me. I’m contacting the Ausländerbehörde to see if they can shed some light on this matter but I have a feeling they are going to stare at me sideways and shoo me away.

I’m happy to cut-the-cord however, I would like the termination to be effective Nov. 1st and to be initiated by her. I’m not quitting, I don’t want to quit (but I suppose it would be incredibly awkward to return to work at this point). So I suppose that is our issue: she wants me to quit, I want her to officially ‘terminate’ me, with reason and trying to agree upon the date during which all of this will be official.

Sorry, it’s a bit much for a Friday, but if anyone could shed a bit of light on this matter, I’d be grateful!

0

Share this post


Link to post
Share on other sites

Posted

Did you do work, acting on the company's instructions?

Did you receive financial compensation?

Did the company pay health and social security dues?

If the answer to all the above is "Yes" then you have a contract, albeit verbal. Since it is not in writing the standard regulations apply, such as termination four weeks before either 15th of the month or the last day of the month.

However, returning from Elternzeit can be tricky if you switch from full-time to part-time, especially if a part-time position was not existent before you returned. Your employer is not obligated to create a part-time position for you. Your boss does not seem to be a very clever person since she already has conceded that this can be done. I bet that you don't have a witness for that, though.

Get a lawyer to write a strongly worded letter demanding your return. Don't even offer an amicable solution.

Disclaimer: I am not a lawyer. Please have all legal advice you receive here verified by a legal professional.

4

Share this post


Link to post
Share on other sites

Posted

Thank you so much! I often question my sanity but I'm feeling a bit more grounded thanks to your responses. I meet with her next week to try and settle this.

The Aldbhrde and my insurance company were helpful as well. The insurance company needs a formal letter of termination, initiated by whoever chooses to terminate the work-relationship, before any changes can be made. So, until that happens she’s being billed.

Through a few friendly connections, I'll be in touch with an Atty on Monday.

@ sarabyrd-my boyfriend spoke with her briefly and she informed him of the same conditions she'd explained to me (part-time available but not worth it...?), so thankfully, I guess, I do have a witness.

@ WRY-Thanks for the link! I haven't given her any impression that I can't work, nor that my schedule is limited. I simply asked to return to work and asked her what classes/hours she had available. She gave me some speech about how she 'knows what it is like working with mothers', indicating inflexibility with scheduling and only earning enough to pay for child care. She spoke and I simply listened. If she was interested in what I thought, she would have asked, plus, I’m not entirely sure I want to work for someone who feels that I'm a burden because I am now a mother. I used to like her... No need to argue. After she was finished blabbering I requested a formal notice of termination. And that’s where the trouble began.

I think we both don’t mind terminating the contract, but when and under what terms seems to be the issue. I’m willing to work with her on this so things should go ok *knock on wood*.

Anyway, I'll report back after consulting the Atty.

Thanks again for your help and enjoy your weekend!

4

Share this post


Link to post
Share on other sites

Posted

...plus, I’m not entirely sure I want to work for someone who feels that I'm a burden because I am now a mother.

I hear you on that! Have to love the "can't/won't do that because you have a kid"

Good luck with everything.

1

Share this post


Link to post
Share on other sites

Posted

@ WRY-Thanks for the link! I haven't given her any impression that I can't work, nor that my schedule is limited. I simply asked to return to work and asked her what classes/hours she had available.

Just picking up on this bit of your post - were you permanently employed with your health insurance and social security type costs covered by your employer?

0

Share this post


Link to post
Share on other sites

Posted

He said that my boss is walking ‘a wooden path’-not sure what that means

"auf dem Holzweg sein" means that you're driving in the wrong direction at 100 mph while not listening to your navi, or, even better, your well-informed passenger and comes from the Middle Ages when the main thoroughfares were mostly covered with paving stones while the secondary roads were covered with logs. Why use a bad road to reach your destination when you can use a good one that takes you there directly?

(getting the wrong end of the stick is not quite as picturesque)

Looking forward to 2015!

No you aren't. All nationwide public holidays after Whit Monday fall on a weekend in 2015.

1

Share this post


Link to post
Share on other sites

Posted

Thank you for the update, I am sure it will be very useful for Toytown members. Nice to hear that everything seems to be going your way.

1

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now