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I am in a difficult position about a failed job change and I wanted to know the opinion of the veterans here.

A few facts about the contract:

  • There is a clause to make me pay some penalty if I resign before starting.
  • I have 6 months of trial, which either party can terminate with 2 weeks notice.

The situation:

  • I made a contract with New Company Inc. to start January.
  • But a new and better has opened up in Current Company Inc. after I have signed the contract. I wanted to stay in Current Company Inc.
  • I told this to New Company Inc. as soon as possible, so I thought they would not spend any further resources for me and have more room to find a replacement.
  • They took it pretty badly and insisted on not to cancel contract.
  • They demanded a months brutto salary to cancel contract.
  • I told them paying that is not an option and I could resign on Day 1 and work only for 2 weeks, but I didn't want to do that to them, because they were very nice up until that point.
  • They told me I could do that, but now if I do that, they will sue me and claim that I never intended to fulfill the contract by using my emails as evidence.
  • Even after that they told me that I should send a few remaining documents so I can start there.
  • I am not really sure if they are trying to force me to work for them, squeeze some money out of me or just hurt me out of spite.
  • They also reopened the job ad for my position (which makes complete sense). But I am fairly certain that even if I start there, they will kick me out as soon as they find a replacement.

I did some research and I think they can only demand 2 weeks brutto salary, because that is the notification period within trial.

My questions:

  • Regardless of the intention, wouldn't I just fulfill the contract by showing up there, resigning and working for 2 weeks?
  • I have a feeling that they are acting out of spite. Is it really common to demand this money? Wouldn't this just force employees to resign on Day 1 and leave company completely unprepared?

Thanks in advance for any advice.

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    "I did some research and I think they can only demand 2 weeks brutto salary, because that is the notification period within trial." I don't think they can claim anything, besides whatever penalty you agreed to pay in case of cancelling the contract before start date (and even that may not be enforceable). Even if you went on with the contract and simply be a no-show from the start it's dubious that they can get any money out of you (but obviously you won't get paid). Though when someone threatens you with a lawsuit, speak to a lawyer. Nov 28 '20 at 23:32
  • Even without your new prospects at Current Company Inc., it doesn't seem that New Company Inc. is a good place to work, given their behavior.
    – Ángel
    Nov 29 '20 at 0:03
  • Just to clarify: "brutto" means "gross", right? Nov 29 '20 at 12:50
  • You should tread carefully, and after reading whatever good advice you find here, get a lawyer.
    – mjjf
    Nov 29 '20 at 16:37
  • Keep in mind that you have to pay your lawyer yourself in German labor court – even if you win the case. Nov 29 '20 at 20:05
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You signed the contract, you broke the contract: pay up.

From a moral or ethical stand point this pretty clear cut: you broke a promise after agreeing to what the consequences for doing so are. If you didn't like the terms, you should have negotiated them or didn't sign in the first place.

Legally, you probably have a chance to weasel out of this. The clause is a bit questionable and German courts tend to be fairly employee-friendly. Whether fighting this through legal means is worth it or not is up to you. Talking to a lawyer would help.

But ask yourself: do you want to be a person of your word or not ? Perhaps your professional integrity is worth more than one month's salary?

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According to several articles like these, making you pay penalty for not joining is in itself legal in Germany, but it cannot exceed the amount of salary that would have accrued in the notice period (so, in your case two weeks of salary and not one month of salary).

To my best knowledge, if they had specified one month, then the entire clause becomes void because the amount is "unangemessen". I also don't think they can demand payment anyways, even if you show up and work your notice (given how the courts decided how the "damage is to be calculated"). However I'm not a lawyer and could be completely wrong.

Now, as a more practical advice: if I were you, I'd apologize profusely and calmly state that you will not be paying the penalty because you don't agree you are obliged to. I wouldn't try to explain too much - none of you are lawyers so there is no point in arguing. Then, I'll just stop replying to their emails, and wait until you are actually sued. If it really comes to that you can then decide to pay up or hire a lawyer - but I'd say there is 99.9% chance they won't follow through. They can only recoup at most a few thousand EURs (right?). It's just not worth the trouble.

Finally on the moral angle: resigning before the start date is much better than resigning on the first day on probation for the employer, and personally I think penalties like those are exploitative and unfair.

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I got to think about

They told me I could do that, but now if I do that, they will sue me and claim that I never intended to fulfill the contract by using my emails as evidence.

They have a point to think that, and your email certainly supports that you don't really want to work for them any more. However, I think they would still be in the wrong.

I would probably end up answering pointing out that I intended to work for them for a long time until <whatever time, probably the date the position opened at Current>, [so it's not true that you never intended to fulfill it]. And you are still willing to fulfill your part of the contract by working at least two weeks for them doing your best during that time.

Now, if it ends up like that, it will probably be a bad experience for all involved. You will be working there for two weeks feeling forced to do so, it won't be enough time to get up to speed, and they won't be much motivated to train you either, since you will be leaving shortly. It would be best for them if they had a tiny project that wouldn't have a bigger span, or if they could have you doing little tasks.

Regarding one month brutto salary vs two weeks, it's possible that their expenses are like one month. For example, the payment to a recruiting agency. Not to mention the costs of dealing with you, signing the contract, etc. And if you end up working those two weeks, that will cost them more than two weeks of salary, from tax forms to setting you up, many little things that would easily offset for a contract having a more normal length, but are more noticeable for that.

Anyway, I don't think you should be held responsible for that. If they wanted that someone resigning on day 1 had to pay a penalty equivalent to a month of salary, the contract (which, moreover, presumably they redacted in full themselves) should say that.

Please, don't blindly trust my advice. Ask a lawyer. Given your situation, the consulting fee will be completely worth.

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Regardless of the intention, wouldn't I just fulfill the contract by showing up there, resigning and working for 2 weeks?

From what you have posted, yes, that would fulfill your contract. But if you really want to know if you understood your contract correctly, it would be better to ask a lawyer. They could also tell you whether that clause in your contract is valid and if it's not valid, what it would be replaced by.

I have a feeling that they are acting out of spite. Is it really common to demand this money? Wouldn't this just force employees to resign on Day 1 and leave company completely unprepared?

Well, you willingly signed that contract. Asking for the contract to actually be fulfilled is hardly "spite". Why do you think this clause was in your contract? Would you think it's fair for one signee to just skip over the clauses they do not like? What if they had said "oh, yeah, payment... we didn't really feel like it, I thought we'd just waive that part of the contract." A contract is a contract. Learn to read it and only sign it if you are willing to fulfil it.

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  • IMO this is too one sided. One could also say: "the employer willingly inserted a clause that is deemed unfair by the legal system. The law is the law. Learn it and don't put unfair clauses if you want it to be enforced" Nov 29 '20 at 16:52

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