getting bullied to resign instead of getting fired

Question

I've been working in Germany in a company with a permanent contract for 2 years. Lately, my manager has seen that my performance is not up to the level it should be and therefore I got 2 options:

• Improve my performance in 3 months (and if I don't, get fired)
• or resign.

However, I keep getting bullied into resigning.

I chose not to resign and I keep getting indirect threats about that it is better if I have left on my own before I get fired.

In such a case what kind of severance payment should I expect in case they fire me? Because it is the only possible reason I can think of that explains why am I being treated this way instead of getting fired.

I am actively searching for another job but I cannot just quit without an alternative because of my visa status. until then, it sucks working in such a poisonous environment every day.

Answer 1

what kind of severance payment should I expect in case they fire me

None

There is no such thing as a mandatory severance payment. Companies do pay severance packages, either because they think it's the right thing to do, or because an employee sued for wrongful termination. The problem in Germany is that courts are so overworked with cases that a judgement will take years to get. And the amount to pay if the company loses grows from month to month that the case is undecided. So to make their accountants happy, they will pay a fixed sum of money rather than having an unknown sum in their books for the next years. But that is only if you sue them. Generally speaking, no severance is expected when they fire you.

However

That said, in Germany you cannot simply be fired just like that (¹). You have your notice period, so if they fire you today, you'd probably work there and get paid for at least 4 weeks (because for 2 years, the legal minimum is 4 weeks to the end of the month. Since they missed that by two days, they could terminate your contract on the end of April, that's almost 8 weeks). If they don't want to have you in the company, so if they want you out the door today, they can legally do so, you have no right to appear and work there... but you would still get paid until the end of your contract as dictated by the notice period, even if they escort you out the building.

So if they want to fire you, the bad thing about that is the impression it leaves in your next interview when you have to say you were fired. But you still have negotiation potential, because being fired means you will cost them another month or two of pay for, let's be real, very little gain, even if they make you work your notice period. Use this potential to reach an Aufhebungsvertrag (basically a negation of your working contract, where both parties agree to end it and then are free to decide on whatever money to pay or notice period to work or not work). You might get less money then you would have gotten through your notice period, but you weren't officially fired. You can always keep a straight face and say "the company and I decided it was better to part ways". Downside to this is that since it is your own decision compared to being fired, you don't get the same unemployment benefits. But as a software developer, you should not stay unemployed for long.

^{(1) You can obviously be fired for cause. But "performance" is no such cause, assuming you actually are there and working. If they fire you for cause, get a lawyer immediately, that's most likely illegal.}

Answer 2

Disclaimer: I'm not a lawyer, just an expat working in Germany which happens to know people in your position. First of all, it sounds like you're in a very tricky situation, in my opinion too tricky for you to handle on your own. Again, in my opinion, the safest thing for you to do is to talk to an employment lawyer as soon as possible, due to the following reasons:

• You may be able to get some "severance" money (the usual amount is 0.5-1 month salary for every year worked at the company)
• In Germany the courts tend to favor the employee in a work dispute. Firing is of possible but it may be more costly for the company than you may believe, likely that's why they are not firing you and instead try to get you to resign
• You will need your formal work certificate ("Arbeitszeugnis") which is a very german-specific thing. Essentially, after finishing employment with a company (regardless how), the company has to issue you such a certificate, and this certificate will be there throughout your career. However, given that it has to be "positive", there are key formulations which may make this document appear very good while in reality it says "don't hire this person". Feel free to search this site or google "Arbeitszeugnis". Again, a lawyer would help you here.

Also, you should consider that you may be ineligible for unemployment benefits for a period of time if you resign.

I think you are doing the right thing searching for a job; even if you find one before getting, given youe situation with your current employer, you should consider talking to a HR professional anyway to check the Arbeitszeugnis. Anytime you will apply for a job you will have to provide your "Arbeitszeugnisse" from all your previous employers.

Note: I happen to know a case of somebody being made redundant in December and has a court hearing in March, so this will definitely not take years (or at least it may depend where in Germany you are). Again, a lawyer will let you know about it.

Answer 3

I respect your assessment of the situation as you being bullied. No one likes being bullied; it must be very difficult to go to the office every day knowing that you'll be treated poorly. There may well be financial reasons why your boss is trying to force your decision, as you've hinted at.

But, as a frame challenge to your question, I'd like to point out that there may actually be benefits to resigning instead of being fired:

• Resigning puts the timing of the decision in your hands. You can pick when you leave, rather than waiting for your boss to pick a date on which to fire you.
• Resigning generally looks better to future employers. If you get fired, and a future employer asks you why you left that job, hearing that you were fired for performance won't sound good. But if you put yourself in a position where you can say that you resigned because it wasn't a good fit, that will sound better.
• While this last point may be difficult to hear in a situation where you're getting bullied, it sounds like you're saying there are performance problems you've struggled with. It might make sense to try to engage positively with your boss on your performance improvement opportunities. Even if you end up leaving (or getting fired), it's always a good idea to consider improvement opportunities as a positive experience. Maybe you can take this time to focus on areas where you're weak, which will certainly be helpful in whatever job you end up next.