German industrial safety legislation for refugees

Case 1: The employment contract

Murat (M) is 25 years old and from Syria. He hears that a baker who runs several branches is looking for a driver. He introduces himself to the boss. The boss explains, "Okay, you can test drive starting from April 1st, 2018. You start at 5 o'clock in the morning". More is not spoken.

M is happy and reports to the central office at 5 o'clock in the morning on this date. The responsible foreman gives him the car key and explains the route M has to take to supply the 15 branches. M finishes the task in 6 hours. This is a bit slower than normal, because he still has difficulties with the communication in the branches. In the evening he gives back the key. The boss says to him: "If you like you can come again tomorrow". M does that and also appears the following days, always at 5 o'clock in the morning. He gets the car key from the boss personally and does the tour. 6 hours each, Monday to Saturday. He doesn't ask for payment because he is afraid that he will be sent away otherwise.

After 8 weeks, however, he dares and asks: "Boss, when will I get an employment contract?" The boss only says: "That was just trial work. Unfortunately you are not fast enough. I can't hire you."

M is totally disappointed and consults with a colleague who also comes from Syria. Both come to the conclusion that M was set up. "Since the boss didn't sign an employment contract, you can't ask for any money either."

 

Question: Is this correct?

Answer: No!

1) An employment contract does not have to be concluded in writing in Germany.

2) It is sufficient that the employer and the employee agree verbally.

3) It is even sufficient if the employee works in the company and the boss is aware of this. (factual employment relationship)

 

Case 1a) The minimum wage

M is actually hired. After one month, he receives a pay slip from which results that he has an hourly wage of 6 euros. He consults with his friend F, who has been living in Germany for several years. He is of the opinion that this is okay because the payment was not discussed. "The boss can pay what he wants", is his answer.

 

Question: Is this correct?

Answer: No!

1) In an employment relationship, the German labour laws automatically apply without having to be previously spoken about it.

2) The law about the minimum wage applies here. This is currently at 8.84 € per hour.

3) The boss must at least pay this amount, even if the amount of the remuneration was not discussed.

 

So what claims does M have for payment?

Solution: 8 weeks X 6 days (Monday to Saturday) X 6 (hours) X 8.84 € = 2545.92 €

 

Question: Does he have any other claims?

Answer: Yes

 

1) In an employment relationship, there are automatically many laws that protect the employee.

2) For example, the Bundesurlaubsgesetz (BUrlG - Federal Leave Act), even if no leave has ever been discussed.

3) Under this law, an employee who works 6 days a week is entitled to 24 days' leave a year.

4) If he works less than one year, he is entitled to 2 days per month. Here 4 days in two months.

5) If the holiday cannot be taken because the employment relationship - as here - has ended, he is entitled to payment. (Holiday compensation)

Solution: 4 days (holiday compensation) X 6 (hours) X 8,84 € = 212,16 €.

M can therefore demand the following payments from his former boss, even though he had no written employment contract and the boss believes that all this was only a trial work period:

Wages April and May: 2545,92 €

Holiday compensation: 212,16 €

Total: 2758,08 €

 

Author: Hans-Otto Morgenthaler

Self-employed lawyer since 1978.

Specialist lawyer for labour law since 1992.

Website: www.arbeiten-in-deutschland.com