Benefits on hold after signing Aufhebungsvertrag

30 posts in this topic

Posted

Dear all,

I would like to submit here my case and see if there is anyone who can provide some feedback ( or knows a bit more about this topic? ).

October 2012 I was tricked by my company (deutsche Burse quoted) to sign a Termination agreement, beginning end of the month. Conditions were to get out of the way by month end with a small amount of money (roughly 1 month gross compensation).

I had two options:

1) Signing the termination agreement ( and negotiating on the conditions)

2) Not signing and receiving an official termination letter ( Kundigung)

I decided to negotiate (through several rounds!) an exit termination agreement, for the following reasons:

1) I speak no German. My chances are limited to find a job in Germany, if not back into another division of the group.

Receiving a firing letter would have meant for me going to court, ergo black mark on my CV for this company, ergo goodbye opportunities in other divisions

2)To avoid the daily constant mobbing

3)I was given no more project or clients to work for and was only sitting in a corner office, forgotten from the senior management ( but not from HR who I spoke to more often than my family members)

Ma main negotiation conditions were the following:

- January and February 2013 I could take unpaid ( so to have access to internal people for a longer time, but still resulting “employed”)

- Exit on March 1st only with a higher amount of money.

End of February (23rd) I register to the Agentur für Arbei as in few days I would result unemployed, and ( I was thinking ) I could get some benefits.

And here it starts the endless headaches which are devouring all my time:

1) The Agentur told me they would give me a penalization for having signed the termination. They added they could not care less about mobbing, no clients, no projects or all the other stuff, but that I had a job and let it go. So they penalized me with a Sperrzeit of 12 weeks (the longest possible). This means I would get unemployment money only in June 2013 ( so no salary from Jan. to June 2013)

2) I appealed it in writing the same day but after few days I got the same message: they could not care less and I would be penalized.

Here is the text:

Der Zeitraum fur den Ansrpuch ruht, wird aus 60% der Arbeitgeberleistungen berechnet. Der sich so ergebende Betrag wird durch Ihr Kaledartägliches Arbeitsentgelt geteilt. Hieraus ergibt sich die Zahl der Ruhenstage. War das Arbeitverhältnis befriested, endet der Ruhenszeitraum mit dem Ende der Befristung.

Der Ruhenszeitraum beträgt längstens ein Jahr.

Ihr Leistungsanspruch ruht bus zum 31.03.2013. Der Entscheidung beruht auf § 158 SGB III

Now here are my questions.

- In the above paragraph (which I have translated word by word and yet understood nothing) I think I get an additional penalization, id est: from June I only get 60% of my salary (called Leistung-entgelt).

Is it possible?

- I am on managerial/director level, meaning I have a base and variable salary. I believe they only took the base salary as a reference, but still the money they calculate to give me back DO NOT even cover for the base ( let alone the variable salary)

Is the maximum payable figure they pay capped somehow?

If so, where do I find this information?

- It is quite clear that I will not find any support or documentation in English or any other European Language, I assume because their strategy is to filter out people who do not perfectly understand German. However I would NOT understand this legal terms even in my native language.

Do you know if there is there any English reference of all this stuff?

- What is this Ruhenszeitraum they talk about? Is it different from the Sperrzeit?

I see coming to Germany, following the great wave of the news ( they want Experienced, qualified workers!) was an extremely bad idea, and I strongly regret it.

However any idea/suggestion would be highly valued.

Thanks and good survival in Germany

-3

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Posted

At first glance, it looks like everything is correct and above board. Before negotiating your leaving the company, you would have been well served by getting yourself informed about your rights and obligations. Especially not speaking German, you should have sought advice from someone in th know, even checked this forum earlier.

Being ignorant of the legal situation in a country doesn't mean it won't apply to you.

It is almost never advisable to sign an Aufhebungsvertrag, as you always get a Sperrfrist for benefits. Companies more often than not try to make them sound good for you, because it's easier for them if you sign.

Were you expecting to get 100% of your salary as benefits? The unemployment benefit is always a percentage of your last salary, and also has an upper limit (so if you were in a high earning job, you may get considerably less than the official percentage).

I doubt whether any variable salary would be included in the calculation of benefits, even assuming you don't with a percentage of your base salary reach the upper limit.

It is quite clear that I will not find any support or documentation in English or any other European Language, I assume because their strategy is to filter out people who do not perfectly understand German. However I would NOT understand this legal terms even in my native language.

This is rubbish. The vast majority need documentation in German - that's the main language spoken here. The next language needed would be Turkish; I'm not sure if there is applicable documentation in Turkish.

Legal language is somewhat complicated until you get used to it, but claiming you couldn't even (be expected to) understand it in your own language is surely an exaggeration. Plenty of us on here can understand the German stuff in the meantime, and it's not our native language.

I see you are Italian; do you really assume that in Italy all documentation about unemployment would also be provided in English?

You say you regret coming to Germany and ask for advice. As you were a high earner, and Italy is just down the road, and you don't speak German, why not go back?

4

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Posted

I was tricked by my company (deutsche Burse quoted) to sign a Termination agreement, beginning end of the month.

I decided to negotiate (through several rounds!) an exit termination agreement, for the following reasons:

Did you negotiate and then sign an agreement in a foreign country whose language you don't speak nor whose laws you understand without first consulting a lawyer? :blink:

1

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Posted

Did you negotiate and then sign an agreement in a foreign country whose language you don't speak nor whose laws you understand without first consulting a lawyer?

- I am on managerial/director level

If the OP is a manager then surely/hopefully not :(

On the other hand managerial/director level could just be referring to a pay grade rather than having managerial responsibilities.

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Posted

Sorry, you signed something (the Aufhebungsvertrag) without understanding the content or the ramifications (i.e., the 3-month Sperrfrist on unemployment benefits). There is no discrimination or prejudice involved, just your own naivite.

You should have consulted an employment lawyer when you had the chance. I'm afraid it's too late to change anything now.

Best of luck to you.

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Posted

Here is the text:

Der Zeitraum fur den Ansrpuch ruht, wird aus 60% der Arbeitgeberleistungen berechnet. Der sich so ergebende Betrag wird durch Ihr Kaledartägliches Arbeitsentgelt geteilt. Hieraus ergibt sich die Zahl der Ruhenstage. War das Arbeitverhältnis befriested, endet der Ruhenszeitraum mit dem Ende der Befristung.

Der Ruhenszeitraum beträgt längstens ein Jahr.

Ihr Leistungsanspruch ruht bus zum 31.03.2013. Der Entscheidung beruht auf § 158 SGB III

The referenced §158 SGB III (in your case: §158, Section (2), Option 1. of SGB III) says that if you got an Abfindung for cancelling your contract early, your application for ALG1 does not become effective until a certain date. This date in your case was calculated by dividing 60% of the worth of your Abfindung vs your regular daily salary, resulting in March 31st.

The detail calculations for this decision can be found in the Arbeitsagentur Geschäftsanweisungen for §158 SGB III. In German of course.

After March 31st 2013 your Sperrzeit begins.

The next language needed would be Turkish; I'm not sure if there is applicable documentation in Turkish.

The website of the Arbeitsagentur is available in English. Most actual documentation isn't available in other languages, a couple brochures (e.g. for the Jobbörse online jobseeking platform) are available in English and - oddly enough - Spanish.

The official primary documentation for SGB II (Arbeitslosengeld II, not SGB III / Arbeitslosengeld I) as well as the guide to filling out the application forms for that are available in Turkish, Russian and English. Although the connotations of this do leave a kind of bad aftertaste.

-1

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Posted

Did you negotiate and then sign an agreement in a foreign country whose language you don't speak nor whose laws you understand without first consulting a lawyer?

I did contact a lawyer.

He said I could not sign the agreement, wait for a firing letter and bring the company easily to court.

Morale: getting probably one month more salary than the agreement AND closing any chances of getting back into the group.

The Termination agreement was written in English.

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Posted

At first glance, it looks like everything is correct and above board. Before negotiating your leaving the company, you would have been well served by getting yourself informed about your rights and obligations. Especially not speaking German, you should have sought advice from someone in th know, even checked this forum earlier.

This is rubbish. The vast majority need documentation in German - that's the main language spoken here. The next language needed would be Turkish; I'm not sure if there is applicable documentation in Turkish.

Legal language is somewhat complicated until you get used to it, but claiming you couldn't even (be expected to) understand it in your own language is surely an exaggeration. Plenty of us on here can understand the German stuff in the meantime, and it's not our native language.

I see you are Italian; do you really assume that in Italy all documentation about unemployment would also be provided in English?

You say you regret coming to Germany and ask for advice. As you were a high earner, and Italy is just down the road, and you don't speak German, why not go back?

Ruapehu,

thanks for your feedback.

Some clarifications:

1) I got advice from couple of lawyers, who told me what I wrote about advantages/disadvantages of signing or not.

My main objective was to go back into other divisions of the group, with the minimum noise possible. The Agentur fur Arbeit unpleasant surprises came only later.

2) Italian documentation: Surely the documentation in Italy is NOT Italian. However at least you have HUMAN beings on the other side of the desk who do not talk and act like machines ( and if you have been to Italy you certainly notice this one second after you cross the border).

Despite the majority speaks no English, they may even try to pretend to talk to you in it.

3) Understanding German stuff: I used to work from 70-80 hours per week. I doubt anyone could learn any language even after 10 years living in a country. Correct me if I am wrong

4) High earner in Germany does not mean high earner in Italy.

Additionally I have not enough Mafian contacts to allow me be a high earner there (yet). Do not you read the news about the country?

5) Hope I do not need justifying myself further in this forum , today

-9

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Posted

Sure, Italians do tend to be more friendly and open on the whole. However, Italian bureaucracy is famed for being even worse than the German.

Working 70 to 80 hours a week is illegal in Germany, so you were working far more hours than you were actually paid for. That said, I don't think anyone has criticised you directly for not having learnt the language, but rather for not accepting that limitation and getting proper advice. Now it seems you did get advice, although not very good advice from what I can gather (i.e. not giving you the whole picture and explaining the ramifications of each option).

Re, your 4) - high earner in Germany doesn't mean high earner in Italy. I am aware of that. However, you said you regret coming to Germany. And being a low/mid earner in Italy may be preferable to being a No-earner in Germany.. Yes, of course I read the news about the country; I also travel there, spent time learning the language, read Adesso regularly..I realise what a mess the country is in. But you can't have both: regret moving from Italy to Germany, and at the same time say any suggestion to move back to Italy is based on ignorance of the situation there.

I wish you luck, wherever you choose to go next.

3

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Posted

Hi,

However at least you have HUMAN beings on the other side of the desk who do not talk and act like machines

May I point out that you have been ripped by your former employer, not by the Agentur für Arbeit...?

I see coming to Germany, following the great wave of the news ( they want Experienced, qualified workers!) was an extremely bad idea, and I strongly regret it.

Indeed, quality of life can be pretty wee in germany, especially when you work 70-80 hours a week.

Cheers

Franklan

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Posted

In fact the whole social security handbook is available in English online and in print - I've posted it elsewhere on this forum.

The 3 month Sperrzeit applies in nearly all circumstances - it is based on the assumption that everyone gets 3 months notice.

Whether you are fired or resign, you need to sign on the same or next day. (That is, the day you are given notice, not the day you stop working)

If you (still) feel you have been cheated or tricked, you need to see a lawyer. Again.

Yes unemployment benefit is capped - and how long you get it is based on how long you have paid into the system.

EDIT: reading your story again, it seems you had FAR more than 3 months to sign on, as this story began back in October. Sorry that your company didn't make it clear (they have no obligation to, but some do) but you have to sign on as soon as you gets news of termination. The Sperrzeit starts from when you sign on - so the AA have not ripped you off either. You didn't know the rules. Sorry about that.

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Posted

In fact the whole social security handbook is available in English online and in print - I've posted it elsewhere on this forum.

Only for ALG2.

-1

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Posted

kato I have a hard copy, it's about 120pp long - I guess I picked it up at the AfürA - and I remember finding it online, too.

I really don't think the OP has been cheated by anyone - he/she simply didn't understand the rules and signed on too late.

I got an ear-bashing from the AA because I waited two or three days before signing on. I had enough money in the bank so I wasn't going to be destitute - but it affects also pension contributions and health insurance, so they get very grumpy if you miss any time.

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Posted

he/she simply didn't understand the rules and signed on too late.

Not just that. He's also punished for:

a) signing an Aufhebungsvertrag in the first place (being at fault for cancellation of his employment)

B) receiving a certain sum of money for this

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Posted

But how is he being punished? he will still receive exactly the same amount of benefit he's entitled to, just a bit later than he'd hoped. Meanwhile he has his Abfindung (or whatever you want to class it as)

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Posted

I don't think that is correct, Boots. When you have a 3-month Sperrfrst, those 3 months are subtracted from the total time you would be eligible for benefits, so the total duration is reduced, i.e. your benefits run out exactly the same time as they would have done anyway, but they start 3 months later.

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Posted

Oh yeah...I signed one of those when I first came over here too. Boy was my wife pissed when I came home with that one!

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Posted

Honestly, most of the things that you appear to be surprised about don't really require knowledge of the German legal system or German language skills to figure out, just common sense.

Of course unemployment benefits are lower than your salary, and of course you can't draw benefits right away if you leave a job voluntarily. If people could just quit, receive a settlement from their employers, walk into the unemployment office and continue to get paid as if nothing had happened, why would anyone work? I don't know the first thing about unemployment benefits in Japan, but I'd be very surprised if they didn't have similar laws.

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Posted

Like everybody else said, very bad idea to sign a contract that you don't understand without getting legal advice. Any competent lawyer could have explained to you that it was a bad idea and that you would get sperrzeit if you quit your job. Correct would have been sticking it out while looking for a new job and only then leaving or let them fire you and then go on unemployment without sperrzeit plus suing them for wrongful termination would have been up to you. They can't fire you that easily so that's why they asked you to sign that agreement that you quit of your own free will.

Anyway, that's water under the bridge. You will get 60% of not your brutto income but your netto. It also seems to be capped at something like 1800 a month.

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Posted

moral of the story; get fired - dont quit. :)

[edit: unless a.) you have a new job lined up or b.) you just want to get the hell out of germany and dont care about claiming benefits..]

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Posted

3) Understanding German stuff: I used to work from 70-80 hours per week. I doubt anyone could learn any language even after 10 years living in a country. Correct me if I am wrong

mm.. i've only been here 2.5 years; and i can read german - but my native tongue is english and i had a bit of time in sweden. 10+ years? thats a very long time, especially when you have dubbed tv - you are kinda forced to start learning the language, regardless how much you try to avoid learning it. i never went to any classes; but i can get the basic gist of things with a little bit of time in the country.. in 1 month; you have to learn how to order food. the 3-6 month period you start hearing more and more words you start to understand out of no-where.. 10+ years, .. not understand a word? doubt it.

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Posted

Any competent lawyer could have explained to you that it was a bad idea and that you would get sperrzeit if you quit your job.

If the lawyer had used that exact wording they wouldn't have been very competent. Signing an Aufhebungsvertrag may get you a Sperrzeit (as may all sorts of other behaviour) if you signing it is deemed to have actively contributed to your being out of work. If you can show you were going to get canned anyway, and signing the Aufhebungsvertrag merely helped you improve your overall situation (better Abfindung, for instance) then you won't get a Sperrzeit. The case worker has quite some freedom of movement in deciding whether to penalise you. As I have posted before - In my career I have signed two Aufhebungsverträge and havent missed a day of benefits, however both times I was ostensibly being downsized and would have been fired "Betriebsbedingt" with or without the Aufhebungsvertrag.

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Posted

The 3 month Sperrzeit applies in nearly all circumstances - it is based on the assumption that everyone gets 3 months notice.

What is this, a "how many wrong things can I say in one sentence" competition? A Sperrfrist applies exactly when, and in this context only when, you are considered to have actively contributed to your own unemployment. For isntance, if your company turns up and says "hey boys, anyone who leaves now gets €1000 and a silver watch" and there is no general move to downsize, if you sign, you may be deemed to have contributed toyour own unemployment and be "gesperrt". If your company turns round and says "we are going to fire half of you,anyone who goes now will get and extra Abfindung", you may well not be penalised, if the comany says "we are closing the office by Xmas, anyone wwho goes now gets a little extra" you almost certainyl wont be penalised, because you were going to be sacked anyway.

Whether you are fired or resign, you need to sign on the same or next day. (That is, the day you are given notice, not the day you stop working)

No. On the day your boss even mentions they want to talk to you about leaving/having to leave you need to get down to the ARGE and yes, you can just walk out of work to go there.

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Posted

3) Understanding German stuff: I used to work from 70-80 hours per week. I doubt anyone could learn any language even after 10 years living in a country. Correct me if I am wrong

You are wrong. Not speaking German after 10 years here is pathetic. Working 70-80 hours is illegal and stupid but even then would have left you with enough time to learn the langauge.

4) High earner in Germany does not mean high earner in Italy.

What I really don't understand about your situation is - How can you be a high earning director/manager, get essentially sacked and still be bleating on about re-joining the company in another division? Surely the time to have negociated that move was back in October, when you still had internal access to the company and surely signing the Afhebungsvertrag hasn't blocked your route back but is a symptom of the fact that they just dont want you (if the process you followed to sign the Vertrag is typical of your working style, Im not surprised). If you had really had a chance in another division, I think you would have known it in December at the latest.

-1

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