German Law/EMPLOYMENT LABOUR LAW IN GERMANY
QUESTION: I am employed on a one year contract basis in Germany. I have completed the 6 month probation period with the company and have another 4 months left to complete as my contract finishes in March 2015. Should I wish to leave this company within 24 hours, I would like to know what my rights are with respect to:
1. Payment for overtime which I was not allowed to work according to my contract but was forced to do this.
2. Outstanding leave due to me will this be paid out pro rata.
3. what notice period is possible to give the company should I wish to leave, my contract states 3 months from my side and immediate notice from their side. In this case would I still get paid out for the above points 1 and 2 according to German labour law.
I really appreciate your advice.
ANSWER: P.S. Please read this version.
1. If an employment contract stipulates exact monthly working hours and the monthly wage it can be concluded that the payment is related to the agreed working hours only. Overtime work must therefore be paid for corresponding the respective proportion of the monthly payment or compensated with free time. If the exact amount of the salary is not explicitly agreed upon, acc. § 612 para. 2 BGB the usual remuneration is owed if according to according to usual customs an extra payment is expected for this extra service.
A standard compensation clause in the employment contract stipulating that all overtime work is included by the agreed wage is effective only according to the jurisprudence of the Federal Labour Court if the contract regulates the limit to what overtime shall be covered by the regular salary exactly. The obligation to work overtime is limited by the regulations of the Working Hours Act (Arbeitszeitgesetz - ArbZG). Overtime compensation is not paid for senior managers in leading positions.
In order for a claim for compensation to arise, overtime work must have been either ordered, arranged, approved, required or tolerated by the employer. No remuneration arises for overtime performed by an employee who acted on his own accord. However, it is sufficient for the compensation claim even if a work was assigned by the employer which could not be handeled in the contractual working hours.
For his own legal protection the employee is well advised to have his overtime working hours acknowledged from time to time by the employer - in case of a legal dispute the employee has to prove in detail when and which sort of overtime work was performed with toleration or on the order of the employer. Furthermore, it is important to be aware of exclusion clauses in the contract stipulating that all mutual claims shall be time barred within a specified period (minimum three months).
2. Leave entitlements are usually not compensated in money terms but granted at the request of the employee.
3. Unless stipulated otherwise in the contract or a special reason legalizing a termination without notice are on hand fixed term contracts cannot be terminated by both contracting parties. If it can be contractually terminated with three months` notice you would still have to work during the notice period or take your outstanding amount of paid leave. If you work overtimne during the notice period you also have the right to be paid accordingly. I would doubt that a contractual clause allowing the employer to terminate the contract with immediate notice (meaning without notice period at all) and without any reason would be valid.
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QUESTION: 1. Working hours - my contract states I must work 40 hours per week. Is the lunch period of 30 mins, included in the 40 hours, i.e. so in total I work 37.5 hours or do I have to work 42.5 hours in order to take a 30 min lunch break.
2. If I have taken 15 days leave and requested it to be deducted from my overtime, however since I have leave due to me I would like to request the employer to take the 15 days from my leave and reinstate my overtime, is this possible?
3. Can you advise who I can approach if I experience disputes/disagreements and for advice on employee rights, I am working in Norderstedt, Hamburg.
1. Lunch breaks are not part of working hours.
2. If both parties agree this should be possible. If no agreement is made each hour of overtime work has to be paid according to the formular (if you earn a fixed salary): Monthly salary x 3 : 13: number of regular working hours per week. You should also be aware of the fact that holiday leave entitlements generally expire at the end of each year. If they could not be used owing to business requirements the period for them to be taken is extended to the end of March in the following year.
3. Trade unions (if you are a member), lawyers (there are specialist solicitors for labour law (Fachanwalt fuer Arbeitsrecht)/ Courts (you need not to be represented by a lawyer but have to bear half of the court fees in the first instance).