Company employed with invalid permit and fired afterward

[The long wolf 9]

Dear comrades,

 

This is my first post on TT. I want to share my experience which affected me both financially and mentally. 

 

I was working as a researcher in Germany when I got a job offer from the company I knew well in advance (we had cooperations). I accepted an offer and relocated to start a new life. But everything went upside down: After starting to work, it was accidentally discovered that my present residence permit (Aufenthaltstitel) was not valid,  I needed a blue card and only after this I could start working. The HR told me to stay at home while dealing with the migration office. The local Auslanderbehorde is known for a bad reputation. Paperworks did not progress and I could not even schedule an appointment for two months. During this period, I was without income and insuracne coverage, and importantly I became an illegal resident because after quitting a former job the residence permit became void. I expected that at some point the company's management or HR would react and help to mediate or communicate directly with the Auslanderbehorde so I could get Fiktionsbescheinigung.  Unfortunately, the HR's office refused to be involved or to help. Two months later, I was fired. The termination letter stated that an employment relationship with the company was terminated within the probation period. This was completely shocking for me because after so much stress, waiting and having living costs, the company decided to fire me. Colleagues in the company were equally shocked, mainly international folks.

 

After firing, I spoke to the manager who is local (very stiff person mentally), He agreed to give a compensation for accommodation expenses I had. There is something else I did not mention in the beginning. Before moving to the company, I explicitly told to the HR that my work permit is bound to my present workplace. The HR missed this point, and since she did not observe or notify, I assumed that it would be OK to start employment while applying for a blue card after arrival. 

When I was told to stay at home, the employment contract was not terminated, moreover, there were other official documents signed by manager and HR regarding internal protocols (training, safety measures, project things, etc). Also, I used to visit my office to make certain tasks a few times a week. Considering this circumstance, I am wondering if the company has obligations to pay some part of salary based on a mutually signed contract that was termination two months later within the probation period.

 

cheers

 

[RenegadeFurther 1,826]

During the probation period you have no rights.

 

It is called a probation period for a reason.

[Dubya 37]

Stating that you have no rights during the probation period is obviously silly, you have all the rights during this period, including accumulating vacation etc. It simply means they can cancel the contract without stating the reason, so you being fired is unlikely to change, however unfair. They may have realized it takes some effort from their side to employ a non-EU person, including a higher wage, potentially.

 

I think you have a good point asking for your wage. Them employing a person without the right papers can have serious consequences (also for you, by the way...), and the fact they told you to stay home right away shows that they at least knew some trouble was coming... Them agreeing to reimburse accommodation also shows me they may want this problem to go away quickly... Why not simply ask them to get your salary instead of the reimbursement of expenses?

[dj_jay_smith 2,772]

I agree with @Dubya, you should push to get your salary.  Minimum is for the period that you had to sit at home, I would even push to try and get more.  If you have Lawyer insurance then you can use this to try to apply pressure (but probably not worth hiring one if you don't).

 

You could threaten them with going to the authorities because they clearly employed you "illegally" and you told them your status.  But this might backfire and is more of a risk and you might end up with nothing.

[The long wolf 9]

Dubya, dj_jay_smith

 

Thank you for your reply. Yes I agree that they decided to go away quickly by giving some money. I did not ask about salary because the manager told me that even giving money for accommodation is already against a law. As I mentioned, I knew this company before, I have visited many times and had been in close relation. After firing, I wanted not to escalate. It is a sister company of a big company located abroad, but management is German (below average reputation amongst colleagues). Before firing, when I was desperately hoping that HR’s office would help with the migration office, I was internally advised by people to contact a CEO who is not local and assigned for this position from abroad. It is kind of late but I am really thinking to contact a CEO and explain everything. BTW, HR’s office is well known for superficiality and negligence, this is what I know from others. 

 

 

 

[zwiebelfisch 6,683]

Depends on your contract.  Most contracts state that they are only valid in combination with a right to work and Id expect (check the paperwork) that they dont have to pay you at a time when working for them would be illegal.

 

To be blunt, this sounds like a company with a terrible attitude and lacks the level of employee support I would expect.  Though it doesnt help with your immediate predicament, it sounds like in the long run you are better off out of it.

 

I wish you all the best.

 

Also, as helpful as people here try to be, this smells like its time to talk to a lawyer, or at least get one to read the contract you signed.

[generalmartok 354]

I'm not a lawyer but here is my opinion.

My wife got a new job but then we realized that her visa was dependent on her being employed with the old employer. Thus she was legally not allowed to start employment at the new job until this was sorted out. Thus if you were to accept any kind of salary, this might constitute as having "worked". I understand you have financial constraints, but please remember that you might later face more trouble. Like if you ever wanted to apply for a citizenship.

Best of luck with finding a new job, with the proper paperwork.

[The long wolf 9]

On 2/7/2019, 5:59:53, generalmartok said:

I'm not a lawyer but here is my opinion.

My wife got a new job but then we realized that her visa was dependent on her being employed with the old employer. Thus she was legally not allowed to start employment at the new job until this was sorted out. Thus if you were to accept any kind of salary, this might constitute as having "worked". I understand you have financial constraints, but please remember that you might later face more trouble. Like if you ever wanted to apply for a citizenship.

Best of luck with finding a new job, with the proper paperwork.

 

 

Yes I completely agree that I could face problems because of working without permit. Actually, I was told that in my case the company may receive very heavy fines if disclosed. 

[ilyann 182]

>  Considering this circumstance, I am wondering if the company has obligations to pay some part of salary based on a mutually signed contract that was termination two months later within the probation period.

 

Did you officially work in the company at least for one day? It sounds like you started work, so you should have received the salary (and other benefits as per contract) for the services you provided. From what you said it looks like a lawyer will make a good case that once you started working you are entitled to the whole 2 months (+ 2 weeks notice period).

 

By the way the termination notice in German labor law must be on a paper with a termination date and signature. Since you obviously only received it after two months I do not see how they can make a good case why they shouldn't pay you.

 

Of course HR must check the documents before you start work, and of course once they found a problem they had to notify the ABH and work out a solution with them. You and the company are both responsible for checking your permit and can be subject to fines, but that's a separate question. And if the ABH had been contacted by the company and you and issued the Blue Card based on your documents, it's hard to see how it would be in the public interest to make you suffer for the months before.

 

The company has completely mismanaged the situation by not doing what any sane HR would do in this situation: picking up the phone and calling the ABH with the words "we need to get an emergency appointment to discuss the situation of a person who works here without a permission from you". As a result, it seemed like they were employing you while knowing about your situation for the whole two months (so, break the residence law) and not paying you for your work as an employee (very, very bad). 

 

Hire the labor lawyer ASAP: There is a very short time to make an official complaint regarding the labor disputes. Probably also hire the immigration lawyer. If I were you, I would in any case be extremely proactive and try to get to the ABH as soon as possible to clarify your status.

[ilyann 182]

On 2/6/2019, 3:22:42, dj_jay_smith said:

 

You could threaten them with going to the authorities because they clearly employed you "illegally" and you told them your status.  But this might backfire and is more of a risk and you might end up with nothing.

 

Threatening someone could be a criminal offense. Bad advice. Just go to the authorities in any case.

[ilyann 182]

On 2/7/2019, 2:59:53, generalmartok said:

My wife got a new job but then we realized that her visa was dependent on her being employed with the old employer. Thus she was legally not allowed to start employment at the new job until this was sorted out. Thus if you were to accept any kind of salary, this might constitute as having "worked".

 

That's how it's supposed to work, indeed – someone (you or the company) finds that you are not allowed to start working.

 

[jeba 2,125]

I´m not even sure that they can fire you given that they had no chance to assess your capabilities (provided that the contract had become effective in the first place - see Zwiebelfisch´s comment). After all, the probation period is there to test whether you´re capable enough and fire you if you´re not. If however, you never started to work how they claim to be unhappy with your performance? I surely would risk those 240 Euros to ask a lawyer that kind of question.

[The long wolf 9]

Dear All,

 

Thank you for your posts and comments.

Here I will write about how the situation has ended. A company gave small compensation of apartment costs I had during that period. It is so unprofessional that the HR contacted me via Linkedin to ask my bank details for money transfer. I guess she was afraid of using the company's email. This is the HR who is responsible for all of that situation I faced,  moreover, she does not have a good reputation within the company at all.

Later, I received a letter from an executive HR outlining how bad experience was that and the problem with onboarding and mistakes, and they will take into account this example for a future. She told that there are no finances to make further compensation.

One day I decided to visit a lawyer and explain everything. The lawyer told me that the contract was illegal because I had no work eligibility and HR's office had to check it. He said that the HR's office has to do so-called Nachtrag to put a new starting date or add an extra paragraph saying that the contract is valid only with a proper work permit. He said this is very serious case for a company if government discoveries it, and I will also have problems and it is not good for me if I want to stay in Germany in the future.  He proposed not to bring a lawsuit to court but demand a certain amount of money from the company then close the case. I decided not to make any steps because I got a super amazing job in another company in the same field. Thus I decided to leave this bad karma behind and forget about the past.

cheers

[Krieg 11,507]

Why did you have the wrong permit?   You mentioned you had an Aufenthaltstitel already, as long as the permit included that you can work then you should have been OK.   A Blue Card is just another permit with more perks, but a normal permit should be OK as well.

 

Your profile says you are Colombian, so you could not come here as a tourist and change your permit here, you should have applied in Colombia for the permit before coming.

 

There are not many situations in which your story makes sense.  

 

Just curious about the situation.

 

[SpongeOver 190]

8 minutes ago, Krieg said:

Why did you have the wrong permit?   You mentioned you had an Aufenthaltstitel already, as long as the permit included that you can work then you should have been OK.   A Blue Card is just another permit with more perks, but a normal permit should be OK as well.

 

Aufenthaltstitel have restrictions. I, for example, cannot work in another role or at a different company than my current company. If I wanted to find a new job, or even to change my job title, I would need to go back to South Africa and start the process from scratch.

[engelchen 11,227]

8 minutes ago, SpongeOver said:

 

Aufenthaltstitel have restrictions.

 

True.

8 minutes ago, SpongeOver said:

I, for example, cannot work in another role or at a different company than my current company.

 

True.

 

8 minutes ago, SpongeOver said:

If I wanted to find a new job, or even to change my job title, I would need to go back to South Africa and start the process from scratch.

 

FALSE!!! Where did you get that crazy idea?!

[someonesdaughter 3,207]

7 minutes ago, SpongeOver said:

 

Aufenthaltstitel have restrictions. 

 

"Aufenthaltstitel" is a neutral term – it simply means "residence permit" but there are different types of residence permits - with different purposes and different restrictions. This is probably a classic case of "made simple and then surprised that it doesn't work that way"...

 

Anyway: 

 

12 minutes ago, SpongeOver said:

 

Aufenthaltstitel have restrictions. I, for example, cannot work in another role or at a different company than my current company. If I wanted to find a new job, or even to change my job title, I would need to go back to South Africa and start the process from scratch.

 

That's nonsense. 

[Krieg 11,507]

24 minutes ago, SpongeOver said:

 

Aufenthaltstitel have restrictions. I, for example, cannot work in another role or at a different company than my current company. 

 

Sure, but put together all the OP's info.   His profile says he is Colombian, so he can't enter the country as a tourist and apply for a permit here.  He has to come with a permit from Colombia.  In order to apply for a work permit he has to get a job offer and apply for a job permit, all before coming.

 

If he was the spouse of an EU citizen he would have access to a work permit on the spot.

 

If he was and dependent of a non-EU student, it could make sense, but he just moved to Germany.

 

Not many remaining options.

 

What I think it could happened is that he applied for the job permit in Colombia and he had that first visa just to enter the country, he was supposed to go to the aliens office and change it for a real one.   But he didn't know he had to do that and/or there were no appointments, so it took too long.   But in that case there were solutions, he could just go early and queue up in a day they take walk ins, so no need to wait for an appointment.   But then, AFAIK he would be allowed to work with that initial permit.   And he was talking about getting a Fiktionsbescheinigung in the mean time, but that would only extend the previous permit, so it would mean the first permit would be OK.

 

There are missing bits.  And I think there was a massive misunderstanding.  The OP seems to think HR would do the process for him, and AFAIK it is your own responsibility to follow up the process.  Some HR in big companies might help you to make appointments and so on, but they won't take over the whole process.  Or maybe if you are a high profile manager, but the OP doesn't seem to be one, and still you have to go to the aliens office yourself.

 

Why he says his only option was a Blue Card? That doesn't make sense to me.

[engelchen 11,227]

5 minutes ago, Krieg said:

Not many remaining options.

 

Actually not many options at all. We already know:

 

On 6.2.2019, 14:00:24, The long wolf said:

I was working as a researcher in Germany when I got a job offer from the company I knew well in advance (we had cooperations). I accepted an offer and relocated to start a new life.

 

It seems that the OP had a permit tied to his original employer (probably §§18, 19, or 20) and didn't bother to have it changed to the new one.

[SpongeOver 190]

39 minutes ago, engelchen said:

FALSE!!! Where did you get that crazy idea?!

 

I thought I cannot apply for a new visa without going back to South Africa. I am restricted to my job and my position. And I cannot apply for an entry visa from Germany. I thought when the Aufenthaltstitel becomes invalid, that I no longer have a valid permit, and since I wouldn't have a valid visa to fall back on that I would need to leave.

 

If this is not true, then sorry about wrong information. If what I was thinking is wrong, then that's a bit of a relief. I like backup plans and right now there is no backup plan if the current job doesn't pan out.