Employees and freelance employees are entitled to a certificate called in Germany “Zeugnis”.
The prerequisite is a permanent employment relationship so that the assessor has enough time to recognize the professional and personal qualities of the employee.
Person entitled to issue the reference certificate „Zeugnis“
The only person entitled to issue the reference certificate is the employer, but a superior of the employee can also take the assessment. Exhibitor of the certificate is the employer, but a superior of the employee can also take the assessment. It is important that the assessor is instructed to do so from the employer. The “grade” of the assessor is recorded in the certificate. External persons are not allowed to issue certificates of work reference. If an insolvency administrator continues to employ an employee, he must issue a certificate. In the case of the death of the company owner the duty to create a reference certificate will be inherited. The person inheriting the business must write a certificate from the records.
When are you going to receive your “Zeugnis” in Germany?
The right to receive a reference certificate begins with the notice of termination period. Legally the claim to a reference certificate actually arises with the official end of the employment relationship, i.e. on the last working day. Usually, the employee can already apply for his/her certificate beforehand with his/her ordinary dismissal. The reference certificate will be used for new applications as the employee has to be facilitated in finding another job for further employers.
Issuing the reference certificate
The employee must collect the reference certificate from the employer. If the certificate is not yet ready by the end of the employment relationship, the employer must send it per post/email to the employee. The employer has to pay the costs.
The employer may limit the employment contract to two years, in case of a new employment relationship.
The following conditions must be respected for shorter time limits:
- The company has only temporary needs for work.
- The employee is hired following an education or study. This facilitates the transition to subsequent employments.
- It is a place of representation (pregnancy or leave of absence)
- The nature of the work performance justifies the time limit.
- The time limit has been allowed.
- Reasons in the person of the employee justifying a time limit.
- The employee is remunerated from the budget. These are intended for fixed-term employment under budgetary law and the employment corresponds to his remuneration.
- The term is based on a court settlement.
- The employee is at least 58 years old on the first working day, i.e. at the beginning of the employment contract.
- There was no previous employment relationship between the employee and the employer.
Form and content of a time-limited employment
The employer must stipulate the end of the employment contract in writing; otherwise the term will be ineffective.
Within a period of three weeks, the employee has to react if he wants to appeal to this decision before the Labor Court (Arbeitsgericht). The three-week period begins with the end of the employment relationship. If he does not react during the three weeks, the term of his employment contract becomes effective.
Working hours and allowed breaks
When should you start working? How many breaks do you have? How long does your break last? How have your working hours been distributed throughout the whole week?
All those information will be provided to you in your contract of employment.
Daily working time
According to the Working Time Act (Arbeitszeitgesetz), the maximum working time per day is eight hours. This time can be extended to up to ten hours. Prerequisite: in six months (24 weeks) the average of your working hours should not exceed 8 hours a day.
Breaks and rest periods
According to the Arbeitszeitgesetz, the following breaks-settlements apply:
|From 6 Hours
|From 9 Hours
The total resting time can be divided in small breaks: e.g. a 30-Minutes break can be divided in 2 breaks x 15-Min. each. There must be at least 11 hours rest period between two working days. Employees may not be working on Sundays and Holidays but exceptions are allowed.
Pursuant to the Youth Health and Safety at Work Act (Jugendarbeitsschutzgesetz), young employees (under 18) are not allowed to work for more than eight hours a day (for a maximum of 40 hours a week). The employer has to allow underage workers to take days off in order to go to school, if it is the case.
For them, the following resting hours-list applies:
|From 4,5 Hours
|From 6 Hours
The following working times are not allowed to pregnant women:
- Night-shifts (8PM-6AM)
Working on Sundays and holidays.
The reasons for a termination are divided in the following areas:
|Grounds for dismissal:
||Extraordinary and immediate termination:
||Ordinary termination with period of notice
|Notice of termination for reasons of conduct
||Special reasons are required
||With previous warnings
|Dismissal on personal grounds
||With no warnings
||Operational circumstances are required
Notice of termination for reasons of conduct
Notices of termination for reasons of conduct are the result of employee’s misconduct. In the event of a breaching of the rules, the employer is first entitled to warn the employee. After repeated warnings, if the situation does not change, there are enough grounds for a dismissal.
As “misconduct” is intended:• Suspension from work taken without permission of the employer;• Failure to comply with operational smoking and alcohol bans;• Criticism to employers and superiors;• Unexcused absence;• Unpunctuality;• Calling sick and working elsewhere.
Did you know? An employee, who is proven to behave against the rules, must pay the estimated “detective” costs to him.
Dismissal on personal grounds
Dismissal on personal grounds depends on facts related with the person of the employee. These imply: • Lack of eligibility/qualification of the employee;• Lack of work permit;• Foreign military service of more than two months;• Serving of a custodial sentence;• Sickness/Illness of the employee:- Long-lasting disease- Frequent short-term diseases- Permanent incapacity for work- Performance reduction
Forced redundancies terminations are triggered by changes in the company:• In-house circumstances- Rationalization measures- Discontinuation or restriction of production• External conditions- Lack/shortage of orders- Decline in salesIf, despite the circumstances, the employer has the chance to take the employee to another place/area of the company, he may not terminate the contract.
When selecting the person to be dismissed, the employer must make a “social selection”(soziale Auswahl in German). The legislator requires that the termination is “socially justified”. Terminations that are contrary to the principle of good faith or are contrary to the law are ineffective. A forced redundancies termination is socially unjustified, if the employer in the selection of the employees to be dismissed: • is a senior (long period of employment),• is older• has maintenance obligations (severe disability or pregnancy).
Reasons for an extraordinary termination
There must be a special reason for an extraordinary termination. Here are some examples.
Reasons of extraordinary termination from the employer:
- Unjustified work-refusal
- Xenophobic comments
- Gross affront
- Infectious, continuous or simulated illness
- Sexual harassments or moral misconduct
- Offences such expenses-account abuse or misappropriation of company funds
- Willful bodily injury of colleagues, clients or superiors
- Taking unauthorized days off
- False calculation of the working hours
- Private phone-calls (after several warnings, quick phone-calls are allowed)
- Surfing the net at workplace [See: Private Surfing at the workplace]
- In case of suspicion of a serious job-related misconduct or a criminal offense which has a negative effect on the employment relationship.
Reasons of extraordinary termination from the employee:
- Arrears of wages (despite repeated warning)
- Infringement of the contract, such as non-payment of agreed relocation costs
- Reckless suspicion of the employer
- Employment protection violations
- If the employer is not able to provide the employee with a job with little physical activity despite illness
Extraordinary and immediate terminations can conclude the employment relationship without observing particular deadline or periods of notice. Both employees and employers can terminate an employment relationship without previous notice. The prerequisite for an extraordinary termination of the contract is a particularly important reason for leaving.
When is the extraordinary and immediate termination of the employment contract legally effective?
- The person that is interrupting the employment relations has to present a notice of termination within two weeks after the important fact (reason for leaving) has been recognized. The notification has to be provided in written form;
- In addition, he/she must obtain a statement from the works council within three days;
- The employer must request the consent of the Integration Office to terminate the employment relationship with a severely disabled person;
- The employer must request the consent of the Public Health Department in order to terminate the employment relationship with a pregnant woman;
- The employer must file an application with the Labour Court in order to terminate the employment relationship with a member of the works council
- If the terminating party does not comply with the above-mentioned conditions, the extraordinary termination shall be forfeited.
An extraordinary termination is always the last step to take against an employee.
Terminating an employment contract can be regulated by an ordinary or an extraordinary termination.
If the employer or the employee wants to withdraw from the employment contract before the period of notice, the following possibilities have to be taken into consideration:
- Exemption from work
- Termination without notice
Please make sure to contact a lawyer in order to be perfectly aware of your choices, to be prepared for the consequences and to know exactly the advantages and disadvantages of your decision.