Told to pay back my Christmas bonus

47 posts in this topic

Posted

Hi everybody,

So last December I quit my job after 13 months of working in a large supermarket. The day after I left I received my pay slip and noticed I had been given my Christmas bonus (payed to me end of November). I thought this was strange to have received my bonus so early but it was too late now I had left.

Then in January I received a letter from the Supermarket giving me a deadline to pay back my Bonus. But I had already spent my bonus as I was practically unemployed during December.

My partner did some research for me and found out that they can only request for the bonus back if it was compulsary of the supermarket to give it away in the first place (meaning some supermarkets have to and some don't). My contract states that Christmas bonus is optional and they don't have to pay it, but they did, so my partner replied on my behalf (as my german isn't great) that they can only ask for it back if it was compulsary to pay it, which it wasn't, to which they replied and said this was wrong and I still have to pay.

I then ignored the deadline, thinking surely this is some joke, and have now received a third letter with now an extra 10euro charge and another deadline, and if I haven't payed by this time they will pass it on to a lawyer.

I wish I had just never received it in the first place rather than having to face this stress now. The problem is I don't even have enough money in my bank account to pay it back, even if I wanted to. As far as I'm concerned if they wanted to pay the bonus out before Christmas then that is at their own risk, and shouldn't ask for it back if people leave in the mean time. Also my contract says nothing about the christmas bonus other than that it's optional.

Now I need some advice on whether it is worth finding myself a lawyer or whether that is too extreme. The bonus is only 220euros however I still cant afford to pay that back. However I don't want to face an even higher bill after the Supermarket gets a lawyer against me.

What should I do?

I think its pretty selfish to ask for a bonus back after they payed it! Especially as I tried to do an 'Ausbildung' with them for twice as many hours for less than half the pay for 2 months, which didn't work out because I couldn't afford to pay my bills. But then if its the law for me to pay it back, then I guess it's bad luck!

Any advice would be much appretiatied!!

Thank you in advance!

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Posted

If you jacked your job in before the 31st march you have to pay it back,if they sacked you it's a different story.(info from mrs bobbylines wage accountant)

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Posted

[default]What does your employment agreement say?[/default]

Also: Did you provide your b/f with a written power of attorney to act on your behalf? Possibly his letter was not binding and your former employer is still waiting for your response.

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

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Posted

The employer did reply to my partners letter, saying that his points were all wrong (which they could be) and that I still have to pay it back. But they haven't mentioned anything about me leaving before March, although I have heard this point from a friend as well.

If I am wrong about it all then fair enough, rules are rules, but I don't want to pay over the money if they are just trying their luck. And I don't even know how I will pay it back, I don't even have the amount to pay.

The only part of my contract that mentions Christmas Bonus, is the point that they don't have to pay it if they don't want to.

Thanks for your fast replies! Very helpful!

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Posted

Hi,

If you jacked your job in before the 31st march you have to pay it back

Only if this is written that way in the contract the OP signed. If it´s not in the contract, no need to pay back.

There is no way we can help the OP without knowing the exact wording of the Weihnachtsgeld-Paragraph in the contract.

The only part of my contract that mentions Christmas Bonus, is the point that they don't have to pay it if they don't want to.

OK, Look at this: http://www.finanztip.de/recht/arbeitsrecht/rueckzah.htm

"Eine Pflicht zur Rückzahlung von Weihnachtsgeld besteht nur, wenn im Arbeitsvertrag, im Tarifvertrag oder in der Betriebsvereinbarung eine entsprechende Rückzahlungsklausel vereinbart worden."

Roughly translates to "A duty to pay back only applies if a clause defining a duty to pay back is in the contract".

Cheers

Franklan

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Posted

My wife has exactly the same case in her firm at the moment,sorry she has to pay it back.Best thing to do is ask the firm if you can pay it back on a monthly basis 50/100 e

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Posted

Thats also interesting.

My partner currently has my contract copy as he tried to get some advice on it today. As soon as I have it back, I will post the description if that helps!

Cheers Aachen!

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Posted

It may not seem fair to you, (and you do have my sympathy wrt the stressful position you find yourself in) but all that matters in law is what your contract conditions stipulate and (provided those conditions are in compliance with the law) whether or not either of the parties involved in such a dispute are in breach of those conditions.

Unless you post, at least, excerpts from the letters the company has sent you quoting the contract clauses concerned and their legal basis (look out for symbol for paragraph numbers and acronyms for laws in the text eg. BGB §123456) for claiming the refund of the bonus, then all we can do is speculate about the rights or wrongs of the matter. If you have Rechtschtzversicherung (legal insurance) or are a member of a trade union you may be able to get an initial consultation with a specialist lawyer for no, or minimal, cost. Otherwise you could try asking for advice from the Hessischer Verbraucherschutz Zentral in Frankfurt (try google.de for the address and website links). They may, or may not, be able to help you although they will almost certainly have a book or three on offer which will cover such questions.

I would suggest, especially in view of bobbylines succinct post, you should get in touch with them tomorrow and offer to make the refund in monthly payments. I imagine if you make it clear to them that they will get their money back they would be amenable to that. You did make a mistake in ignoring them previously as your file is probably now marked accordingly which may be why they have ratcheted up their threat level.

Whatever course you choose to take do take action quickly as it could turn out very much more expensive if you don't.

2B

ETA: *curses on this throttled internet* I see the thread grew from 2 posts since I refreshed it last so, once again, it appears 2B is made redundant input-wise. :rolleyes:

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Posted

Thanks for your input 2B!

Yes your right, it's stressful enough as it is, so I don't wan't it to stretch out and become even more expensive, if I have to pay it back, then like a couple of you said perhaps they will settle for monthly payments, however since they have added on a late payment fee already I'm not so sure how willing they will be to cooperate, especially I ignored a letter. Although, I do feel this late fee is also a bit unfair, I mean they are not a bank.

I think it was the Hessischer Verbraucherschutz Zentral that my partner went to today, but unfortunately they were unable to help and recommended getting a lawyer.

To be honest, I don't remember seeing any law acronyms in any of the letters, but as soon as I get all my letters back and my contract Il post some quotes about what they have written.

Unfortunately I have no Rechtschtzwersicherung so would ideally like to avoid the involvement of lawyers altogether but at the moment it looks like that might not be possible, whether on my terms or the employer's.

If I had the facts put out infront of me, proving that I'm wrong then I will put my hands up and accept how it is, lesson learnt not to quit just before Christmas! Although Ive spoken to 4 other employers of my partner and myself, and they all think it's crazy and the employers are just trying their luck to get money out of me. However, I really need to speak to a specialist in this area of law.

Again, really appretiate your replies!

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Posted

In my book bonuses are paid for past good performance and not for enticement to stay on another year or whatever.Unless your contract specifies otherwise, tell that firm to jump in the lake and cool off. Just my opinion if I would have to render a judgment.

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Posted

Weihnachtsgeld is no bonus.

A bonus is paid, as you said, gaberlunzi, for a good performance in the past to an idividual. Weihnachtsgeld is an extra pay to all employees, intended to keep the staff motivated. Hardly the case if someone leaves the company.

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Posted

Yup - definitely as above - what the contract states (or doesn't) about repayment, and under what repayment terms/timelines.

I still think it might be an idea to get your dates in order:

- Date on which you served your notice to the employer (so that this could be passed onwards and upwards to payroll)

- Last working day / last date

- Date when repayment request was first made

- Dates of letters they sent you

- etc...

All things being equal, your salary and your bonus came from the cost center of your department which your ex-manager oversees. I doubt your repayment of the bonus would ever get passed back down to your manager's cost center, but if there is any "in good faith" to be had at this point, it is probably more likely to come via their involvement rather than payroll. As far as the payroll department is concerned, however, after several letters to you, it seems like they are wearing thin on "in good faith" arrangements. But they are an employer nonetheless, and not a bank, and surely hardship and staggered repayments should not be totally out of the question.

Besides, had you still been employed by them, and had they tried to deduct from your next months salary, the best practice anyway is to deduct in a staggered way, and not all at once out of the same salary so nothing is left (depending on the amount).

Of the few companies nowadays that still even offer the christmas bonus, they often try to rephrase its purpose so that it is a recognition for (continued/ongoing) performed work (ie not automatic entitlement or tradition just because its christmas). If tied closer to performance/contribution, I suppose you could counter argue that performance/contributions were made Jan-Nov and argue the repayable amount down, but... Is it worth all that for the repayment amount? And if the theme of "continued/ongoing" comes up in relation to the bonus, you have no chance.

Bonus/Christmas bonus was a very hot topic for HR, and of the companies that I know, they had that topic all sewn up years ago to be watertight in case of disputes. Unless your ex-HR dept is sloppy, I would not be holding my breath too much for gaps to counter-argue.

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Posted

I agree that Weihnachtsgeld is something used to keep employees motivated, however now it seems more of a punishment asking it for it back because unfortunately I wasn't.

Like I said before, I would happily have not received it in the first place, at least then I wouldn't have to bother with all this, but they chose to pay it me and I used it.

If this money was just an enticement to stay, then I still don't agree that they will get lawyers involved to take it all off me again. It was never specified to me that I am only allowed this money if I stay for however many more months, I'm allowed to leave my job whenever I want and really I would expect them to be able to deal with it whether it is good timing for them or not. I felt bad at the beginning as I didn't know I had even been payed this Weihnachtsgeld until I received my pay slip after I had already left, but at the end of the day it's bad luck for them, or at least that's what I thought, it seems like the other way around now. The year both we were payed Weihnachtsgeld quite late, end of December I think, which to me seems a more suitable time to pay Weihnachtsgeld, however as far I was concerned it's their risk when they pay their employers the Weihnachtsgeld, as emloyers are entitled to leave when they wish, however of course now I see that may not be the case

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Posted

This money isn´t just to entice people to stay, but is part of their wages, based on a 13-month pay system (some people with older contract even have 14-months of pay!).

Since you receive half of the 13th months' pay each half year, it is reasonable for the company to ask for it back if you do not stay for the following 6 months, and it is usually stated either in your contract with a company, or on an extra from which you are required to sign shortly after receiving the "extra" payment.

If you have left your company voluntarily, as opposed to being fired, then you are supposed to pay back this money.

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Posted

Leaving voluntarily or being fired -- doesn 't matter. All what matters is wha this contract says about it. If back- payments in case of a leave isn't mentioned there he can keep it.

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Posted

This money isn´t just to entice people to stay, but is part of their wages, based on a 13-month pay system (some people with older contract even have 14-months of pay!).

Since you receive half of the 13th months' pay each half year, it is reasonable for the company to ask for it back if you do not stay for the following 6 months, and it is usually stated either in your contract with a company, or on an extra from which you are required to sign shortly after receiving the "extra" payment.

I'm no lawyer but would disagree with that. If it is contracted as a 13th salary, as long as you have worked the full 12 months of the year you should be entitled to the full 13th pay - regardless of how long you stay afterwards. If you haven't worked the full 12 months, you get a pro-rata amount. In the case of 13th salary, it's usually your total salary divided by 13 instead of 12, so is indeed not a true bonus at all. But likewise they can't hang it over your head for the next 6 months.

In the case of a true bonus, it's another story. But I'm also of the mind that a bonus is usually based on past measured performance, not expected future performance.

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Posted

Simply write them a nice, very short letter to let them know where you stand. Something like...

FAT CHANCE ASSHOLES!!!

Regards, clclcl123

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Posted

Yes I really did feel like replying with something like that NoBullJim! But then very quickly after the second letter I began to worry that maybe I am wrong and they are entitled to ask for it back. I would happily send them a reply similar to yours (as I was nothing but stressed out with that company) however until I know whether I am in the right or not I don't want to push my luck! And as it seems, there is no clear answer.

The problem is, I don't know what the actual definition of this Weihnachtsgeld is! It could be argued that this is almost like a gift for working in the past, or like some of you mentioned it could also be only as a motivator for the next 6 months or so. Although they failed to mentioned this as a back up in any of their letters I believe.

Am still yet to post you some quotes, I will get on that as soon as I can so you can see what they have written. I can also check over the dates of everything.

It seems to be that if they can`t ask for it back it's because it was a payment given to me for the time I worked previously, and if they are entitled to ask for it back it's because I have left before 6 months of receiving it. Although if it were that plain and simple, surely they would have included that in my contract.

And surely they would have included a bit of back up in their letters, for example with laws, or something I signed (which as I'm aware I havent)or an explanation for their entitlement to request the money. As far as I am aware, they have only said it's because I worked 13 months there. But we will see when I post the information that they have written.

Cheers Everyone!!

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Posted

FAT CHANCE ASSHOLES!!!

Regards, clclcl123

Yep. I try to be honest in all of my dealings, but they'd have to fight me for it. If it wasn't rightfully owed to me yet, then don't give it to me yet.

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Posted

It really does depend on what is stated in your contract. Just discussing it backwards and forwards without posting anything on what you are bound to by contract isn't going to get you anywhere.

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Posted

As pointed out somewhere above it might not only depend on what's expressivly written in your contract, but also what's written in a Betriebsvereinbarung or a Tarifvertrag. Maybe you could ask your Betriebsrat? Or join a union and ask them for advice? Or suggest to the company an amicable agreement like e. g. you don't see that they have a point, but nevertheless, to avoid the risk of a courtcase, you would be prepared to pay 50% of what they are demanding? Otherwise you might pay back without recognition of a duty to do so and under reserve of reclaim ("ich werde den geforderten Betrag ohne Anerkennung einer Rechtspflicht und unter Vorbehalt der Rueckforderung zahlen"). That way you would have time to find out about the legal situation and would keep the option to claim it back later, should you find out that you were under no obligation to pay.

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Posted

I'm afraid I can't tell you anything about the legal side of things. But you - the OP - seem to worry more about how to pay back the bonus. As has been suggested by bobbylines, I'd say if you HAVE TO pay it back, make sure you make an arrangement with them to pay back a small sum on a monthly basis - e.g. something like €25 a month. Such an agreement is ALWAYS possible in Germany. Best of luck!

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Posted

Write to them stating that clearly they beleived at the time of payment that they should make this payment, what further information such as contractual or legal basis do they now have to make them beleive, you are liable to refund this payment.

If they are stating that they made a mistake earlier and are correct now, maybe they were correct then and have made the error now?

It is their error not yours, they have to demonstrate that this is in fact the correct legal and contractual position. As such they should be liable for any additional costs of making good their mistake, this should include legal fees to clarify the correct legal or contractual position. . If this was a mistake, then it is their mistake alone, you spent the money in good faith.

What can they do? even if they can prove it was a mistake, sue you for what? when their is a mistake at most one party can sue for restitution, this can only be done if the innocent party is in a position to make restitution, the money was spent in good faith, nothing left to refund.

so just write back to them, stating

1. prove it was a mistake

2. Money was spent in good faith, so not in a position to make a refund.

3. prove by way of a signed legal opinion from a licenced lawyer at their expense that this is in fact the legal & contractual position that you are liable to refund money, then in the interest of fairness, you may be willing to make an exgratia refund payment based upon your means, offer to pay back say 5 euro a month. Also reassert that any costs such as the legal opinion costs are as a result of their mistake so on their account.

This way if a licenced lawyer really can prove the legal- contractual case that you have to pay back the money, then pay it in installments, this is all a court at most would ever award, and a lawyer will know this, offering to act fair and reasonable always undermines lawyers as they know that Judges will always take this into account, and punish their clients if they persue any case above a reasonable and fair settlement to waste time of a court.

-9

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Posted

Are you trying to be satirical?

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