Fired from job with immediate effect while on medical leave (Fristlose Kündigung)

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Dear fellow expats,

I am writing an unpleasant story unfortunately... hopefully a funny one next time.

 

A hearing is scheduled in a few weeks at Arbeitsgericht, to determine if my Fristlöse Kündigung is effective.

Could you please advise me how to prepare?  Is it possible / probable that I lose this case?

 

After 17 months on the job with Unbefristeter Vertrag and not a single day sick leave, I break down, go to emergency room (since I had no Hausarzt yet) and get examined by the Chefarzt in Psychiatry.  Burn-out.  He sends me to find a Hausarzt immediately.  I find one.  The initial diagnosis is confirmed and I get two weeks Arbeitsunfähigkeitsbescheinigung.  Doctor tells me to go relax, re-think and find the reason why this happened...  

 

I email the doctor's notice to my employer immediately and minutes later send it via registered mail.   2 hours and 30 min later, a Fristlöse Kündigung lands into my Inbox.  Probation period expired 11 months ago.  The boss asks that I meet a colleague to accept the immediate termination and to give up laptop, phone and work tools.  But I am feeling sick -- I am not meeting anyone in this condition.  Moreover, the boss does not have my home address, because I de-registered from the Meldeamt several months ago.  The de-registration has something to do with the stress... the closed spaces at work really bother me.  On the road with my van (son lives >300km away), sightseeing every weekend, a couple cheap hotels and friends does the trick.  Result is -- the boss can not serve me the Kündigung personally.  Meanwhile, I mail all work items to my boss via registered-insured mail...

 

There is much more to the story...I've been telling the boss that this job is literally killing me over the last 8 months.  Finally in June, I said this can not go on, either I quit or we change the contract so I can get more time off because I must take care of my health.  The boss chose to change the contract and keep me working.   He takes 19% off my salary and my vacation days increase from 30 to 60.  Additionally, I start a different type of work (where he charges the customer a higher rate) and the new contract subtracts one vacation day for every sick day.  He took the last action because I told him I will need a week off to have a hernia operation...  I foolishly agreed and kept on working. 

 

The straw that broke the camel's back came when I gave a week's notice that I need the entire next week off, instead of the previously planned two days.  The boss denied the request.  I was off Monday + Tuesday, then worked full day Wednesday.  On Thursday morning I  went to the emergency room... The above narrative is what happened next.

 

Couple additional questions are:

If I get a local address registration again (WG, or renting) would I be able to get Arbeitslosgeld? 

The attorney says that he can secure the normal 3 month Kündigung, which will extend my contract till end of December.  So how fast do I need this new registration ? (if at all...)  Can I register in another Bundesland (closer to my son) and still receive this Arbeitslosgeld?

 

Thank you very much for your attention and responses!

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It is a good that you have contacted a lawyer. Your situation seems very complicated. Have you asked your lawyer if it is legal to live in Germany and not be registered at the Einwohnermeldeamt?

 

You have to register at your local job centre immediately when your employer terminates your contract not when your contract ends.. Have you done this? Apart from your personal documents they will want an address and a bank account from you.

 

Do not sign anything from your employer without consulting your lawyer first. According to the German holiday laws it is not allowed to use holidays for days lost due to illness. 

 

§ 9 Erkrankung während des Urlaubs

Erkrankt ein Arbeitnehmer während des Urlaubs, so werden die durch ärztliches Zeugnis nachgewiesenen Tage

der Arbeitsunfähigkeit auf den Jahresurlaub nicht angerechnet.

 

§ 10 Maßnahmen der medizinischen Vorsorge oder Rehabilitation

Maßnahmen der medizinischen Vorsorge oder Rehabilitation dürfen nicht auf den Urlaub angerechnet

werden, soweit ein Anspruch auf Fortzahlung des Arbeitsentgelts nach den gesetzlichen Vorschriften über die

Entgeltfortzahlung im Krankheitsfall besteht.

 

https://www.gesetze-im-internet.de/burlg/BUrlG.pdf

 

I am not a lawyer.

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Thank you for responding White Rose,

Quote

You have to register at your local job centre immediately when your employer terminates your contract not when your contract ends.. Have you done this?

I have not yet registered at the local job center -- I am on sick leave three more weeks.  Would it be acceptable to register at the job center end of next week if I am able to get a local address meanwhile?  The doctor tells me to use this time to try and heal, to solve the health problems first...  This job center and court case seriously interferes. 

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1. you cannot be fired for being ill!!!

2. you need to be registered

3. you are better off away from this company, even if things are difficult right now!

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Given that this is an almost duplicate thread of the same topic within a short space of time from somebody who never posted before...

 

Did you deregister (left germany permanently) or simply advise that you don't live at a certain address any more? With whom have you voluntarily shared your deregistration details?

 

If you deregistered at the Amt, AND told the krankenkasse this (or let the employer do this for you) how are you able to get medical treatment? 

 

What type of contract do you / did you have? Self-employed, agency worker etc...

 

Something doesn't seem to add up here. But maybe that's because of the complex situation, and an attorney who doesn't sound like s/he is worth whatever s/he is being paid to give you limited advice to prepare for the upcoming court case.

 

It looks like there are 2 main points:

 

1) Is the firing legal? What does the attorney say? Hearings at the arbeitsgericht don't happen that fast, so this has been brewing a long time it seems. My guess is that many months ago you WERE under probation, which actually matters a lot. Especially if you drastically changed contract and maybe set the probezeit clock back to 0 again. The ill>holiday conversion sounds odd, since usually it is in the opposite direction. Are you sure the boss wasn't giving you a pool of extra "unbezahlten urlaub" days, and you misunderstood?

 

2) You want a german adress quickly as you intend to claim benefits from the german system. No comment.

 

I'm not a lawyer.

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You will have two hearings (Gutetermin) before anything is decided via an Urteil.   The hearings are meant for listening to both partiess and to try to come to one agreement.  You are not even required to be in the first hearing, your lawyer can do it all alone.  But you are required to be in the second hearing.

 

You need to be registered, like ASAP.   And from what you said, your contract has illegal bits here and there.

 

What was the reason for your termination?

 

You have to inform your local Job Center (actually the Agentur fur Arbeit) about your termination and bring copies of it  and let them know you did not accept it (you did a Klage).

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As others have said, look at your new contract to determine if it specifies a new probezeit (may not be legal), register at some address and preferably register with the agentur für arbeit as soon as you can.  I can not tell you how the de-registering will affect your arbeitslosengeld.  If you continue to be ill, you may be eligible for krankengeld from your krankenkasse.

 

Normally you should register immediately when you lose your job in order to avoid losing benefits but as you were ill with a doctors note, they might be ok if you do it a bit later.  I certainly don't think it's legal to cut into your vacation due to sick days.  I have actually never heard of a clause like that in a contract.  I googled it and only found a reference to taking away vacation if a person has been sick for the full year and even that isn't legal.  Besides, you are paying for more than the extra vacation days already with less salary.

 

I also second that  you should at this point not sign anything coming from your boss.  Lawyer up.

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Thank you all who responded!  Very kind of you :)

 

To clarify points raised above:

@paulwork -- I was never under probation.  And my boss had a choice in July, whether to keep me working, as I told him in email that I can not continue under the present conditions.  He kept me working.  The contract was simply amended -- Arbeitsvertrag Ergänzung.  There was no new probation.

 

To receive mail and medical treatment I have agreement with my friends to send my mail to their address with c/o ...  for example:  my name, c/o my friends' name, address...  Had no problems so far.

 

The reasons cited for termination are

 

1. unexcused absences from the workplace 

( I have doctor notice for the last day -- the day of the Kündigung.  A month ago Two consecutive days where I told everyone on my project including the project manager and the customer, both in writing emails and by telephone that I can not come because of a car accident where I must arrange to fix my car.  The boss was on a 4 week vacation during that time, so I knew he was not watching, because during his previous vacation, he did not pay me the salary 4 days late -- not on time -- his excuse: "because he was on vacation!"   I told the boss what happened immediately upon his return.)

 

2.  "wiederholter Vertoß gegen dienstlichen Anweisungen" -- this is completely made up, as my first priority is to do the work assigned to me by the customer and project manager...  my boss is neither of these two roles and has been observing from the side the entire length of the project).

 

3.  Verweigerung der Kommunikation um mögliche einvernehmliche Lösungen zu finden. -- This is also complete lie.  First I did not pick up his calls while I was speaking with the doctors.  Second, I told him in email (writing) that I want to communicate in writing -- both instant messaging -- WhatsApp and email.  That is because I can not handle another shouting match with him, that he is causing much additional stress by his behavior and I already have too much from the work environment.

 

So that's the situation.  I am able to do this work, but not in this environment.  Previous work places were much more civil.  Regarding the comment of looking for unemployment benefits from this system -- yes, because my taxes are going to this system.  I am not choosing how much and who to pay my taxes to.  Also, this system is in place.  If Germans don't want it legitimately used then they should dismantle it.  Not to mention the scams and abuses going on with all kinds of criminal elements.

 

Again, thank you everyone for your attention.

Best regards! 

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May anyone please offer an advice about what follows after a "Gutetermin" at the Arbeitsgericht?  

 

The judge made a settlement proposal that is in my favor.  I accepted it promptly. 

The other side (my employer) has another week to respond.  But what happens then?   

From a previous reply, I am guessing there is going to be another hearing at which an "Urteil" is handed down by the judge.  But this is just my guess.  Could anyone please offer more details?

 

Thank you for your kind attention  :)

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I your employer accepts the settlement proposal as well there will be no Urteil. It will just be written into protocol that an agreement was reached and the lawsuit ends.

Only if you don't reach an agreement with your employer the lawsuit continues and an Urteil will be pronounced by the judge eventually.

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Specifically if my employer disagrees with the proposal from Arbeitsgericht -- what happens then?

Will there be another hearing scheduled?  Then an Urteil sometime later?

Can there be appeals by the other side? ... I am curious because I wonder if my employer might actually have malicious intent... a sort of revenge for my having raised a legal claim agains him.

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3 minutes ago, branit said:

Specifically if my employer disagrees with the proposal from Arbeitsgericht -- what happens then?

 

There will be a second Gütetermin couple of weeks later. And if there is still no agreement, the judge will make an Urteil.

 

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Was this the first or second Gutetermin? If it is the second then your employer will most probably accept it because the judge is already hinting he might go for your side.

If this was the first hearing then it would be unusual that the judge suggested something. Your employer might reject it and counter-offer something later when the second hearing approaches. Which you might or might not accept.

If there is an agreement then there won't be any Urteil. The case will be closed and the conditions of the agreement will be documented.

According to what you've said you have big chances to win the case, but that wuould mean you get back your job, which might not be soemthing you want to do. So if you do not want to take the job back your target should be getting as much compensation money as possible.

Rememeber to include to receive a good recomendation letter as part of the agreenent.

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Thank you Krieg for the detailed explanation! 

 

...the employer accepted the judge's proposal after the first Gutetermin.  This pays me about 65% of the original salary for the 3 months of a the normal Kündigung and lets me off work completely (freigestellt).  Yes, one of the points of the settlement includes "good recommendation letter."  I doubt the employer will word it in a way such that negative tone does not show through...but anyway...it is a positive outcome overall.

 

I am very happy that the people at this forum are helpful and compassionate!  It is a wonderful feeling :)

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3 hours ago, branit said:

This pays me about 65% of the original salary for the 3 months of a the normal Kündigung and lets me off work completely (freigestellt). 

 

I am very happy that the people at this forum are helpful and compassionate!  It is a wonderful feeling :)

 

So the company just pays you what you would get in unemployment benefits anyway ? 

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3 hours ago, branit said:

... it is a positive outcome overall.

 

Well ... as long as you are fine with the outcome that's ok. But it's not really a good deal. No compensation at all and only 65% of the salary for the remaining time (Freistellung is relatively normal and in the employers interest: They don't have to fear your insubordination ...). Your employer must have had some valid points. 

 

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Hi Folks,

regarding the Freistellung settlement -- yes, the company pays me this amount during three months of a normal Kündigung.  During this time I am free to take care of problems for which I requested time off prior to the court case.  This settlement does have the negative consequence of reducing potential unemployment benefits.  However, I regard it as positive for the folllowing reasons:

1. It puts a timely end to a very unpleasant ordeal.  Everyone's time costs are thus reduced.

2. It lets me move on without high financial costs.  The settlement is as much in my favor as possible, given the size of this company (very small).

3. It is counter to my employer's demands against "freistellung." I needed time off badly and I got it.

 

The validity of my employer's points could have been argued extensively (and IMHO proven invalid), but the potential time costs, legal costs and emotional costs were not worth it to me.  I do not have legal insurance, did not plan this intentionally and would have much rather avoided the conflict (court case) had I had the benefit of a benevolent counterparty.

 

The friendly and informative people here further helped me out of this mess... Y'all rock!  :rolleyes:

 

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22 hours ago, branit said:

Thank you Krieg for the detailed explanation! 

 

...the employer accepted the judge's proposal after the first Gutetermin.  This pays me about 65% of the original salary for the 3 months of a the normal Kündigung and lets me off work completely (freigestellt). 

Right. I haven't really read through everything, but be warned - if you are "unwiderruflich freigestellt", the dole will reduce your ordinary payment and apply a purely mythical income. It happened to me. Make sure you are only "widerruflich freigestellt", as the other will not count towards any dole contributions.

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