Advice needed for Elternzeit dispute

21 posts in this topic

Hey, gang.

 

Been a while but needed a break from TT's serious conversations about why men should pee sitting down. LOL And now is as good a time to hop back in as ever before the proverbial poop hits the fan. Here's the deal:

 

My wife has been a full-time employee of her company for 7 years. This company has around 50 employees. Her Elternzeit was supposed to be over in March 2014. She sent a Einschriben mit Rueckshein request for 2 years total; one year completely at home and then the next year coming back to her job to work part-time as Pro Familia advised her that she had to let the company know of her 2 year plan for Kündigungsschutz. Seven days after our son's birth, she requested it in letter form. Then the HR person called her and told her that they didn't have to give her part-time work in Elternzeit. My wife then sent them an email with an a copy and included link to a law which stated that, if your company has a minimum of 15 employees and you've been an employee for 6 months, then they have to give you some kind of PT job with an equal portion of your normal salary.

 

Here's a link to said law. Of course, in this law, there are exceptions and that's where things get a bit schwammig.

 

In the beginning of April the company sent a letter confirming the Elternzeit as well as the request for PT work in the second year. The letter also stated that they'll need my wife to send them detailed information regarding her return as a part-timer (such as how many work hours, certain days, etc) 3 months before she comes back as per Paragraph 15 BEEG.

 

In November 2012, my wife called the HR dept to ask if she should come in personally to discuss her return to work or if she should mail in her return-to-work details in written form. She was told to send them in written form...and, "Well, we'll have to look at what work we have for you or IF we have for you". So my wife sent the details per Einschriben Rueckshein later that week.

 

We didn't hear back from them until a letter was dropped off personally into our mailbox by a company employee on Xmas Eve. This letter stated that they cannot give my wife a PT job because they filled her position with a new full-time employee for the entire 2 year period of her Elternzeit and there are no part-time OR full-time positions available in the company. A co-worker told my wife that they hired someone for her position back in June 2012 (3 months after our son was born). So now my wife is effectively laid-off until March 2014. From what she's telling me, her only option is to look for a PT job elsewhere but ONLY if the company allows her to do so...even though they don't have work for her. Needless to say, our first Xmas as a family was about as close to ruined as it could be without maiming or death involved.

 

An Arbeitsrecht Lawyer we paid 60 EUR to question by email over the holidays said that he didn't think we'd have a case to go in front of the Arbeitsgericht because the company filled the position and that qualifies as a special "exception" to the rule. Seriously? What in the blue hell are the employee laws here for if an exception like that is put into place? How exactly was the employee protected from being jobless in this situation?

 

So my wife earned well over half of our total income...kind of a no-brainer considering her husband is a foreigner building up his small business here where the land doesn't recognize his credentials. I won't let this ruin us and we'll (tightly) get by with just the income from my business but this situation has more ramifications than that; it can possibly affect whether I'll be given my 5 year visa when I go to review in October, whether we'll have to get some type of financial assistance (or whether we'll even qualify with an Auslander in the mix), whether we'll be able to stay in our new apartment, etc..

 

Does anybody have any advice for what to do in this situation? Are there any organizations we can go to for help? Any good Barracuda Lawyers that people in the Mannheim area are aware of that could help us? Thanks in advance and wish us luck, gang.

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I don't have any ideas how to solve the Elternzeit issue, however, I have an idea regarding your NE. Under §28 Abs. (3) AufenthG foreigners married to German citizens (or a parent to a German citizen) are eligible to apply for an NE after 3 years. If you meet the rest of the criteria already, you might be able to apply now while your wife is still receiving Elterngeld.

 

 

it can possibly affect whether I'll be given my 5 year visa when I go to review in October

 

Edit: Does you wife belong to a union? If not, now might be a good time to join (although I don't know whether they also have a Sperrfrist).

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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.

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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]

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In November 2012, my wife called the HR dept to ask if she should come in personally to discuss her return to work or if she should mail in her return-to-work details in written form. She was told to send them in written form...and, "Well, we'll have to look at what work we have for you or IF we have for you". So my wife sent the details per Einschriben Rueckshein later that week.

 

We didn't hear back from them until a letter was dropped off personally into our mailbox by a company employee on Xmas Eve. This letter stated that they cannot give my wife a PT job because they filled her position with a new full-time employee for the entire 2 year period of her Elternzeit and there are no part-time OR full-time positions available in the company.

 

Could it be that they didn't fulfill the 4 week deadline between your wife's Einschreiben in November and their letter "zugestellt per Bote" on Christmas Eve?

 

If yes, then they can no longer claim the "dringende betriebsbedingte Gründe" they wrote in that letter for denying her Teilzeit, see the end of this article (it's written from the employer's view):

 

  • "Wollen Sie die ordnungsgemäß beantragte Teilzeit Ihres Mitarbeiters in der gewünschten Form ablehnen, müssen Sie das innerhalb von 4 Wochen mit einer schriftlichen Begründung tun. Versäumen Sie diese Frist oder wahren Sie die Schriftform nicht, können Sie keine entgegenstehenden betrieblichen Gründe mehr geltend machen. Ihre Zustimmung gilt dann als erteilt."

 

However, if they didn't fulfill the deadline that doesn't mean that she now automatically has the right to part time, she would still have to go to court (= Klage vor dem Arbeitsgericht) to get it, it's explained in detail in this article, written by a lawyer:

 

  • "Reagiert der Arbeitgeber auf den Antrag nicht innerhalb von vier Wochen, so wird die Zustimmung zur Verringerung der Arbeitszeit im Gegensatz zur Regelung im Teilzeit- und Befristungsgesetz vom Gesetz nicht fingiert, sondern der Arbeitnehmer muss auf Verringerung der Arbeitszeit klagen. Da das Gesetz allerdings vorsieht, dass der Arbeitgeber eine Ablehnung des Teilzeitwunsches innerhalb von vier Wochen nach Zugang des Antrags des Arbeitnehmers erklären und zudem schriftlich begründen muss, kann er sich in einem vom Arbeitnehmer angestrengten Prozess nur auf die im Ablehnungsschreiben genannten Gründe berufen. Versäumt der Arbeitgeber die form- und fristgerechte Ablehnung des Anspruchs des Arbeitnehmers, kann er sich daher auf dringende betriebliche Gründe, die dem Teilzeitwunsch entgegenstehen, nicht berufen.

    Der Anspruch auf Verringerung der Arbeitszeit während der Elternzeit ist leichter durchzusetzen als der Anspruch nach § 8 TzBfG, weil der Arbeitgeber ihm nur dringende betriebliche Gründe entgegenhalten kann, insoweit also gesteigerte Anforderungen an die Gründe zu stellen sind. Andererseits kann der Arbeitnehmer seine Vorstellungen von der Verteilung der verbleibenden Arbeitszeit nach dem Gesetzeswortlaut nicht durchsetzen, weil das BEEG einen Anspruch auf eine bestimmte Verteilung der Arbeitszeit nicht vorsieht, der Arbeitgeber diese vielmehr im Wege seines Direktionsrechts vorgeben kann, wenn keine Einigung mit dem Arbeitnehmer möglich war."

 

*********************

 

By the way, there was a court decision (Bundesarbeitsgericht, Urteil vom 19.04.05, Az.: 9 AZR 233/04) where a mother changed her mind 6 months into the Elternzeit (i.e. too late) and suddenly wanted Teilzeit, in that case the court decided in favour of the employer, see here.

 

But since your wife told her employer from the very start that she wanted Teilzeit, I don't think they have a leg to stand on, they should have only hired the replacement for the period she had told them she wanted to stay at home.

 

I suggest you ask ProFamilia for a recommendation for a good "Fachanwalt für Arbeitsrecht", they have probably already had to deal with such cases.

 

*********************

 

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. "

 

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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. :)

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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.

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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. :)

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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.

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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!

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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!

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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.

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You boss has a very big problem you have none. Your position with the company was put on ice during the Elternzeit it was not and cannot be terminated because your boss does not want to have you back. The problem is, the law states that the company must offer you a postion like the one you had before the Elternzeit. This usually means a full-time job which some parents no longer want.

 

In your case,I would tell the boss you would like to work according to the conditions you had before the Elternzeit began and have a legal right to do so. Say you have someone who can take care of the child and you are looking forward to returning to work.Even if this is just a bluff, you boss will begin to sweat and have a lot of sleepless nights. Your boss must come back to you with an offer concerning your continued employment, an offer of part-time work or a termination of your contract which you agree to. If he or she is clever they will offer you a sum of money if you agreet to terminate the contract (Aufhebungsvertrag). Your boss is hoping that you will terminate the contract yourself thus ending his/her problems and saving the company money. Whatever you do do not terminate the contract yourself. If things continue, do as SaraByrd advised and see a laywer, it will be worth every penny.

 

Here is an extract from the Bundesministerium für Familie, Senioren, Frauen und Jugend

 

Während der Elternzeit ruhen die Hauptpflichten des Arbeitsverhältnisses. Das Arbeitsverhältnis bleibt aber bestehen und nach Ablauf der Elternzeit besteht ein Anspruch auf Rückkehr zur früheren Arbeitszeit.

 

Im gegenseitigen Einvernehmen können der Arbeitgeber und die Arbeitnehmerin beziehungsweise der Arbeitnehmer außerhalb des Rechtsanspruchs eine Teilzeit mit weniger als 15 Wochenstunden vereinbaren. Es besteht ein Rückkehranspruch zur vorherigen Arbeitszeit nach Ende der Elternzeit.

 

http://www.bmfsfj.de/BMFSFJ/familie,did=16318.html

 

I am not a lawyer and would advise you to seek legal advice.

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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!

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...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.

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@ 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?

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Hi kids!

 

So, here’s the recap:

 

Spoke with the Atty on Monday and he informed me that a termination, by either party, is to be in written form and once provided, is effective immediately and for 30 days (so if I were terminated today, I would effectively be employed until the 30th of Nov). He also informed me that she is responsible for either paying me from the time my Elternzeit expired through to the termination date (a severance of some sort) or allow me to work for that duration (so, 2 months) until to end of the agreed upon termination date. He said that my boss is walking ‘a wooden path’-not sure what that means (sometimes I think I’ve got a hold on the language and then someone throws something like THAT into the mix!) but I just I assume it’s figure of speech to indicate someone isn’t doing something correctly? I was also informed that she is required to give me part-time work if she (or the company) has more than 10 employees. If she has fewer than 10 employees, then different rules apply (we didn’t address those because she has more than 10 employees).

I met with my boss this morning and although she was singing a bit of a different tune, she was still trying to sell me out of my position; children’s holiday schedules are too complicated to work around and would make working exceptionally difficult for me, how many km did I have to drive to get there?, etc., etc. Once again, I let her spew a bit before expressing my views. She was still a bit cross initially, but she did listen this time around and was far more agreeable after she heard what I had to say (I suppose people are often more agreeable once informed that an Atty has been consulted and possibly retained). I simply informed and illustrated that we could work around my new ‘schedule’ (read: child) very comfortably and in such a way that will minimize any ‘discomfort’ to her or the company and its clients. She seemed reluctant at first but after I gave a few examples, she was very receptive and even excited. So, we’ve worked out a schedule with a few issues that both parties have to sort out (I have to contact the Aslndbhrde and my insurance company, she needs to speak with her accountant). We’ll communicate again next week and I should be back in the saddle by Nov. If, for some reason, things turn sour, then we’ll retain the Atty and let him handle everything from here on out. So, I think (and hope) everything will go well and I can pitch this incident with the rest of the year in a few weeks. Looking forward to 2015!

 

Thank you all for your support and advice and I hope this situation will not happen to anyone else, but if it does, perhaps something in this thread will help to clear things up a bit.

 

Oh! @ batchfile: From what I understood (based on the stamp in my passport) I had a yearly contract that was to be renewed at her discretion, so no, not permanent I suppose, however my health insurance and social security type costs were covered by my employer.

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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.

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