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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.

  • what kind of severance payment should I expect in case they fire me? have you asked your employer that? – dwizum Mar 3 '20 at 14:31
  • because they will try to pay as little as they possibly can? I want to know what to expect before having this conversation so I don't sign a crappy firing statement/give up my legal rights to reject it – anxiousPI Mar 3 '20 at 14:35
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    @anxiousPI - I guess my point was, maybe you can actively engage with your boss. When he says "you should quit instead of being fired" you can say, "why do you believe that? What will the difference be for me? Will I receive a different severance package?" Of course, you shouldn't sign anything you don't understand or agree to, but maybe you can have a conversation to learn more about your options and figure out your boss's behavior. If he just continues to bully, or doesn't give answers to your questions, well - no harm done, but at least you tried. – dwizum Mar 3 '20 at 14:40
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    @JoeStrazzere as I said, I am actively searching for another job. But until I find one, I do not appreciate being treated this way. – anxiousPI Mar 3 '20 at 14:40
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    @ChatterOne PIPs don't work in Germany. You cannot be fired just for bad performance, only for serious mistakes. Yes, you're expected to leave, but nothing happens is you don't improve and stay. – Chris Mar 3 '20 at 21:23
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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.

  • Maybe worth reading: workplace.stackexchange.com/questions/57219/… – nvoigt Mar 3 '20 at 15:12
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    You may actually get more money out of this, if you do it the right way. Firing you costs time and money and is a legal exposure risk. I'm sure the company wants to avoid this if possible. So offer them a "mutually beneficial" agreement that terminates your existing contract and in return they give you a nice severance package. That needs to be done VERY carefully so unless you are extremely confident that you fully understand the legal landscape and that you know how to negotiate well, I would recommend getting professional help. Having a lawyer strengthens your negotiation position a lot – Hilmar Mar 3 '20 at 17:13
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    The one thing worth noting, I conducted about 20 tech interviews so far and I've been to at least 10. Nobody ever asked me nor did I ever ask if the person is leaving previous job or if they got fired, so there is that... (Germany, Software industry) – Miroslav Saracevic Mar 3 '20 at 17:53
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    @ChatterOne In Germany, they don't call previous employers. Instead, you get a written reference, which legally has to be written in a "favourable" way ("wohlwollend"). – Karsten Koop Mar 4 '20 at 8:29
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    @KarstenKoop Additionally this reference is handed to you. So you can read it yourself and decide whether it is a good idea to attach it to job applications. – quarague Mar 4 '20 at 8:56
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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.

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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.
  • I understand the benefit, and I agree with what you said. I am actively searching for a new job but I cannot just quit as it would affect my visa. my question was why would I get treated this way instead of just getting fired? – anxiousPI Mar 3 '20 at 14:47
  • Unfortunately, we can't literally answer that question. You boss may be doing this because they have some financial motivation we don't know about. Or they may be doing it because they like being able to control and bully people. Or, they may be doing it because they actually believe it will be better for you if you resign, because of the points I've made in this answer. Or some combination of those three things. – dwizum Mar 3 '20 at 14:51
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    I know that, personally, as a manager, I've often dropped hints to poor-performing employees who weren't making any progress on improving, encouraging them to consider a change, rather than just outright firing them. I did this because I wanted them to be in control of their own future, and I wanted them to have the benefit of being able to find a new job while still employed, instead of having to deal with the emotional impact of actually getting fired. – dwizum Mar 3 '20 at 14:53
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    This answer is skipping over the issue that you cannot just fire someone in Germany for bad performance (It is possible, but not in the way Americans think. Takes time and written warnings.) Getting OP to resign is a lot easier legally than firing him. – kat0r Mar 3 '20 at 15:21
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    @kat0r: The downside of that is that if you're fired in Germany, it's more of a black mark than it is in the US. But I agree with your comment, this answer appears to be written from a non-European perspective. "Resigned because it was not a good fit"?! That's a reasonable answer why someone job-hopped after 11 months in a job, but you don't resign without a new job lined up. Also, you probably forfeit unemployment benefits by resigning. If that's not an issue because you can get a new job soon, you'd get that new job before resigning. – MSalters Mar 3 '20 at 15:50

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