Termination of an employment relationship: take a close look! Agreed arrival before the first day can be a working day.
The case:
A lawyer wanted a career change. In mid-2016, he applied for a position at the Federal Office for Migration and Refugees, which at the time was looking for decision-makers for asylum procedures. The lawyer was taken. Although initially only for half a year, as the wave of refugees could not be dealt with in six months, his employment contract was extended until it finally lasted two years. Or so the employer thought.
In the contract, the parties agreed that the employment relationship should begin on 09/05/2016. The last contract extension was agreed so that the contract should end on September 4th, 2018. But our colleague was supposed to do a training course before he could decide on asylum applications. These training courses took place nationwide in Nuremberg. But the lawyer lived in Düsseldorf. In order to be fresh and rested for the first day of school, he wanted to drive to Nuremberg on Sunday, September 4th, 2016.
He asked the BAMF whether that was okay for the office. The office agreed and took over the costs for the journey and for a hotel room for the night from 04.09.2016 to 05.09.2016.
After the last fixed term had expired, the former lawyer applied for a permanent position. But he was unsuccessful. It then occurred to him that an employer may only employ a certain employee for a limited period of up to two years. If fixed-term contracts add up to more than this time, an open-ended employment relationship is created.
The contract says that the employment relationship should begin on September 5th, 2016. But after all, with the consent of the employer and because of the work, he was already working on September 4th, 2016. This day should be taken into account and he was therefore employed by him for two years and one day. But the BAMF did not want to participate.
The employee then sued to find out that he had an open-ended employment relationship with the Federal Republic of Germany.
The decision:
The matter ended up on the table of the Düsseldorf State Labor Court and was given the file number 3 Sa 1126/18. The lawsuit was upheld because the journey on 04.19.2016 was not a private pleasure for the employee. He had already started work on Sunday and the two years had expired on September 3rd, 2018.
One tip:
The two years don’t have to be related. If a company employs an employee once for a limited period and then, years later, again for a limited period and both periods exceed the limit of two years, an open-ended employment relationship arises. Therefore, when an employment relationship is terminated, take a close look!
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