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Location: Germany

We have an employee that was laid off because his performance was unsatisfactory. His notice period is 3 months. We were hoping, he would at least do some trivial, but time-consuming tasks in that 3 months.

However, it looks like he suddenly has lost the ability to produce more than 10 lines of code that would compile. He does come to work on time, he doesn't browse random sites or do anything not work-related except visiting the restroom. He is never drunk during working hours, but he seems to sleep with his eyes open, waking up in random intervals to type some line of the code that doesn't make any sense.

Is there any way to put him under the pressure to either do anything useful or face immediate termination? Or he's smart enough not to get any legal reason for doing that, and we should simply let him not come to the office and search for new work instead, so that he doesn't block a desk, which is what he probably aims for?

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    Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi May 13 at 0:06
  • Does Germany not have the concept of Garden Leave? [In short, you go home immediately & do not return. Your access permission is removed from all locations. You still get paid for the duration of your notice]. – Tetsujin May 14 at 9:10
  • You say "he seems to sleep with his eyes open, waking up in random intervals to type some line of the code that doesn't make any sense."<--- Is he ill? Is he having a seizure? (e.g. an absence seizure or focal impaired awareness seizure). – user126038 May 14 at 19:56
  • @Araucaria-Nothereanymore. apparently only between 8 and 16:45 – Danubian Sailor May 14 at 20:04
  • I'm being serious. People are often completely unaware that people with absence seizures are having seizures even whilst interacting with them. You wouldn't know if he was fitting outside work. But maybe your description involved a large amount of poetic licence. Can't tell. – user126038 May 14 at 20:15

13 Answers 13

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I have some legal training in employee law in Germany (but IANAL and this is not legal advise).

Your guess is probably right. By doing a minimum of work, he is bullet-proofing himself against further actions on your part. The bar for immediate termination is rather high in Germany, and if your company has a Betriebsrat and/or is unionized, even more so. And since you already fired him, there is even less cause for an immediate termination - you would have to be in and prove a situation where it is objectively unbearable for you to let him sit out his notice period. Essentially, as long as he isn't stealing things or outright refusing to work, an immediate termination would only open him the door to sue you and take a nice severance package.

I also don't advise threatening him with or taking revenge with a bad reference ("Arbeitszeugnis"). That paper is supposed to represent his entire working time, not just the last few weeks, and an unfair reference can land you in court as well.

Legally speaking, there's not much you can do. You already dropped your largest bomb on him, you have nothing to threaten him with as long as he does a small amount of work, comes in on time and otherwise satisfies the letter of his employment contract, and he has made clear through his behaviour that he has no intention of playing nice until the end - which is entirely understandable.

What you can do is offer him a deal. Including some things others have already answered:

  • You can simply send him home on full pay, that way at least you get the desk free. Note that you can do this one-sided, it does not need his agreement. Note that you can not so easily forbid him from coming anyway - as long as he has an employment contract, you need to check with your lawyer on the details of forbidding him entrance ("Hausverbot").
  • You can offer him an exchange. Half the remaining salary if he agrees to shorten the notice period and end his contract immediately. This requires both parties to sign the paperwork.
  • You can give him very specific tasks to do, especially if he still needs to hand over work, document code or something else that matters to you. As the employer, you have the right to give him tasks and he cannot refuse if they are within the limits of his working contract. ("Weisungsbefugnis")
  • You can also offer him a deal for the last weeks, maybe something like every day he will get coding work that should take him about half a day to finish and when he's done he is free to go - this would give him more time for jobhunting and give you more work than now - win-win.
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    Maybe I'm misunderstanding the situation, but regarding " you have the right to give him tasks and he cannot refuse if they are within the limits of his working contract", I got the impression that they've already reached this point - the employer is assigning tasks, the employee is refusing to do them, and the employer is at a loss about what to do about it, which is the whole point of the original question. Was that not the case? – David Z May 12 at 19:14
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    @DavidZ he's actually not refusing to do a single thing, but masters doing it as inefficient and slow as possible while still maintaining an impression he is actually working. – Danubian Sailor May 12 at 20:46
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    From your description, it’s not even “create an impression of working”, but “create a minimally-plausible legal claim that he’s working”. – PLL May 13 at 0:16
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    @DavidZ my point is about very exact and precise tasks, given in writing. Not "work on this project" but "document the code logic of lines 100-150 of the some_module.php file". I may have misunderstood the OP, but from the "he writes 10 lines of some useless code" part I had the impression he still works like most software devs - he picks bugs from the issue tracking system and works on them. – Tom May 13 at 6:01
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    @PLL exactly. According to precedent court cases in Germany, an employee does not owe the employer to work at the best of his ability. He owes him an "average" amount and quality of work. And being slightly or even somewhat below average is not grounds for termination ("average" obviously includes people both above and below that value). There is a rare number of cases where terminations for slow work were held up in court and they were well below the average. One case I remember was 10%. And it has to be over some period of time - the courts recognize people have bad days and weeks. – Tom May 13 at 6:04
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The best course of action is to let him stay home at this point. It is no use to expect him to be productive while on a working notice, given that his performance was already lacking. Give him pay in lieu of notice and free up a desk.

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So you fire someone for not being productive and then expect him to be productive?

Joke's on you.

He was already poorly motivated, now he's even less motivated. You should have expected this and just put him on inactive status.

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    This is the answer--this plus the answer by @DaleM. Being let go for performance has to be REALLY stressful. Not exactly the sort of thing that would bring out the best in someone. Definitely wouldn't expect an improvement in the situation... Forcing him to continue to "work" kind of seems almost cruel... Better to just pay him severance and let him spend the three months searching for his next job, doing training, getting job coaching--trying to better himself, or at least find a better fit job. What he's doing now is wasting his time and OP's--a lose-lose. – bob May 12 at 15:54
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    This is the only answer that actually makes sense. I don't really understand the OP, like what kind of motivation is even left for the employee at this point?? – Vahid Amiri May 13 at 18:35
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You sacked someone and let them keep access to your network?

If you are lucky, all he's doing is being ineffective. If you're unlucky, he's writing a script that will anonymously execute in a few month's time and delete all your backups.

Never, ever, ever let someone with a cause for grievance against you anywhere near anything important. You lock them out of the system, you sack them, you pay them their notice period and severance, you stand with them while they collect their personal belongings, you walk them out the front door, you collect their key, you shake their hand and you wish them luck.

Sadly, this is incredibly harsh on the 99% of employees who will do the right thing but the risk from the 1% is just too large.

As a commercial plumber who's had disgruntled employees fill drains with concrete and drill 3mm holes in shower risers (the bit after the taps so it only leaks while someone is having a shower), take it from me.

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    That's heavily depends on situation and legislation and I'm not sure it's legal in Germany to cut off the employee from network only because employer is worried. You got to understand that you just can not for no reason prevent worker from fulfilling their working duties. – shabunc May 13 at 8:03
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    It's quite the leap going from an unproductive employee to a criminal. – Pål GD May 13 at 8:25
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    This is an extremely US-centered point of view. – Sebastiaan van den Broek May 13 at 13:02
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    @SebastiaanvandenBroek - funny that. Looks like Dale is from Australia... :D – josh May 13 at 16:18
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    @josh fair enough. Australia is closer to the US in terms of culture than they’d like to admit. This isn’t surprising. Definitely not the same in Germany however. – Sebastiaan van den Broek May 13 at 16:23
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Why not just give him 3 months pay as per contract and tell him to go home.

Problem solved.

And it will help the rest of the team as well.

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    +1 for "it will help the rest of the team". Having someone do nothing and getting away with it is a huge demotivater – Martijn May 12 at 7:27
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    @Martijn How is "doesn't actually have a job anymore" equivalent to "getting away with it"? – DonFusili May 12 at 7:50
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    But he does have a job. And besides that, that doesnt really matter. There is someone next to you doing nothing. That is extremely unmotivating (I've experienced it myself twice) whatever reason. And if nothing is done about it he's getting away with it, even if it's just 3 months :) – Martijn May 12 at 8:02
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    That is why 3 months notice period is stupid when someone is fired. But OK when they leave as their own choice – Ed Heal May 12 at 9:34
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    @DonFusili How is being paid 3 months salary to do nothing not "getting away with it"? – Jon Bentley May 12 at 10:17
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Let me get this straight: you terminated this employee for unsatisfactory performance...

... and now you are expecting him to perform to your satisfaction.

Just... stop and think about that for a moment. In fact, think about it for a good long while. Think hard about it - really exert your brain.

Then, stop wasting everyone's time, and tell the former employee to go home and enjoy their 3 months of paid holiday.

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    Entirely unnecessary sarcasm. – mcalex May 14 at 15:44
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    @mcalex sarcasm is a good in itself though ;P What I do see however is a misconception, they expected the terminated employee to work at the same underperforming level as before, but now they are even more underperforming (which is still something that one might perhaps not expect to happen but at least should calculate in as a possibility). – Frank Hopkins May 14 at 19:33
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    @mcalex I don't think that word means what you think it means. – candied_orange May 15 at 5:06
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You might motivate this person to do some actual work by giving him a task that can be done in less than a day/week when working at a normal pace. When the task is finished he can go/stay home for the rest of the day/week. Some might say this way of handling it rewards bad behavior. However if you just want him to do some stuff and don't get hanged up about it being unfair or setting a bad example/precedent, I think it might be a good tactic.

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    This is a good tactic for workplaces in general, wins all around. Though it's rarely implemented. People should be paid to do work, not to fill a chair between 9 and 5. – Aequitas May 12 at 4:10
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    You are aware of this being IT? And you are aware of a whole school of project planning (scrum) coming out of the fact that you CAN NOT RELIABLY KNOW HOW LARGE A TASK IS? And what if he can not finish the task at all - he can not even WORK on it (called a blocker)? Go home without pay? You literally argue for random hourly pay independent of knowledge and based on luck. Good luck having anyone with common sense agree to this. – TomTom May 12 at 14:01
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    @TomTom If I understand right, this answer is saying "if he finishes it, he can go home early," not "if he doesn't finish it, he has to stay late." If the task turns out to be a 1 hour task, he works on it for 1 hour, goes home, and gets paid for the whole day. If it turns out to be a 20 hour task, he works on it for 8 hours, goes home, and gets paid for the whole day. It sounds to me like solution you're criticizing is a solution that nobody proposed. – Tanner Swett May 12 at 17:31
  • @Tanner Swet, yes that's how I meant it. – thieupepijn May 12 at 20:05
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    @thieupepijn The point is that this strategy actively incentivises the choosing of quick-fix solutions and while the example was an extreme one, code reviews aren't going to prevent sub-optimal solutions without the reviewers typically needing to spend more effort than if they'd just fixed it themselves. – Gwyn Evans May 13 at 13:33
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As the other answers point out, he does what he is legally obligated to do:

  • come in on time
  • do work (however much he does) his contract obligation of hours/week
  • do nothing as "revenge" for being culled from your working force

It is in the employees best interest to do exactly that - it removes your ability for early termination wich is quite difficult under german law.

If he is smart he will never agree to any kind of earlier severance because in german law this might give him a several months strike from recieving unemployment payment.

If you, as worker, -willingly- admit to no longer being employed (Aufhebungsvertrag) the german Arbeitsamt will freeze your unemployment payment because you "willingly choose to not work anymore". So you are out of work and do not get money while scurrying for a new job.

Suggestions of "how to pressure him" by promising a "bad" Arbeitszeugnis or give him shittier jobs then he had only give him grounds to sue you - so don't.

Send him home, let him get into job searching and pay his last months salary (not shortened - there is no legal way to do that). You might want to check with a lawyer if you can withhold money he would normally get from working late/overnight/weekends - there is a good possibility that that is not possible and you would have to pay them as if he normally worked because you do not provide him the ability to work by issuing a Freistellung.

Source: Background of working laws, not a lawyer.

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    Arbeitsamt will freeze your unemployment payment This is true when losing the job was one's own fault. This may be true, if one was terminated, also, because unemployment money is an insurance plan and one violated their duties to maintain employment. Secondly money is is then likely paid for only nine instead of twelve months. No money for the first three months of job search. – Bernhard Döbler May 13 at 14:23
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I was in quite a similar case some months ago. I say to you, what might be in his mind.

He is now shocked and he is likely working very hardly behind the walls to find his next job. This distracts his focus from his work.

He knows that it is not okay. The danger of a bad Arbeitszeugnis is very deeply in his mind, the problem is that it does not mean that he can do too much. He must find his next job ASAP, and he does not know yet, how long will it last!

As you fired him, I think you knew well, that replacing him means some cost and some instability of your processes.

Make the things clear with him. Make a - mutually satisfiable - list of the things what he needs to do at last. Probably he won't make all of it, but most of it, yes.

You can also expect a sudden increase in his work quality if he has already got his next job. With luck, you can even spare some months of salary, if he can start his next job quickly.

You can use the threat of a bad AZ. Probably you can not fire him on the spot ("fristlose Kündigung"), because not working too much is not enough reason for that, but it does not mean that you can not threat him with it.

There are also other ways to motivate him. For example, as far I know, you can send him back to home any time ("Freistellung"), possibly with a decreased salary. Depending on his family situation, it might be even a more worse threat for him than a fristlose Kündigung.

Note: the threat of a bad AZ might be a joke for you, but it is very strong threat for him! Particularly if you can believably prove before a court, that he was bad at the end and he has not a legal insurance ("Rechtsschutzversicherung").

Actually, the leave in peace is much more important for him as for you. Talk with him, cooperate with him, have clear expectations and be nice with him if he follows what you agreed.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi May 13 at 7:12
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As someone who works in Germany, and who switched jobs already, I can explain some things and give a possible solution:

First, the long notice period is relatively common (up to 3 months) and how "useful" it is depends was the employee fired, did he quit himself, what the situation between the employee and employer is, does the employee have another job lined up etc...

If you quit, you might want to move to the next job ASAP, but it's useful for the employer that you finish your own work and make a seamless transition to another colleague (benefits the employer).

If you got fired, as in this situation, you probably don't have a job lined up and waiting, so this brings you 3 months of time to actually find a job while still having income (benefits the employee).

The situation can be resolved quite easy but it depends of the contract, as for ex. I had in all my contracts the option to finish the notice period early if it was OK for both me and the employer. So, you could talk to the employee and try to come to an agreement where the notice period is shortened to 2 months, or even 1. This however depends on the employee since he needs to agree to that also.

When I switched my last job, I was mostly done with work already and didn't have anything lined up, so I agreed with my ex-employer to shorten the notice period, since this benefited both sides.

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  • Long notice period is common because its minimal length is controlled by law. It depends on the length of the employment. As far I know, after 2-3 years, this minimal length is 3 months. This law is stronger than the employment contracts (i.e. if there is "1 month" in your contract on any reason, but you are fired after 3 years, you still have the right for a 3-month notice). – Gray Sheep May 12 at 13:54
  • I was at my ex-employer for 2 years, and the notice period is 1 month by contract. I left in the end with 2 weeks notice because I quit in the middle of the month, and staying at my ex-employee for another month (or month and a half) would bring no benefits to both sides. I had nothing more to work on, so he would need to pay me for nothing, and I wanted to start at my new job ASAP which would in this case be pushed further back... – Chapz May 12 at 14:06
  • If you found your next job so quickly, then congratulations. The typical length of a recruitment process is 1-2 months. From your first contact with the target company, until your first work day by them, you are lucky if it is only 2 months. But if you can leave earlier, typically with an additional agreement, you can spare your last salaries for them, making the leave nicer for them (might cause better AZ + continuous employment for you + you can say that you leave with a mutual agreement and not by firing). – Gray Sheep May 12 at 14:13
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    Even if your contract does not allow shortening of the notice period, if both sides agree it would be in their best interest to do so, they usually can update the contract to add this possibility. Cases when it is not possible are rare and usually involve unions. – Mołot May 12 at 16:17
  • @GraySheep I did not quit and then looked for another job, I had a signed contract by the new employer before I quit. When I quit, I was ready to start at the new job at any moment, so since my boss didn't see any reason for keeping me longer, he agreed to shorten the notice to the earliest date that is OK for both sides. Obviously, in OP's case, the employer will probably want to use the entire notice period so he can take the time and look for another job while still having income. – Chapz May 14 at 11:12
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You can send the employee home with full salary since its the most painless way to go.

However, under German jurisdiction, its also possible to terminate his contract without or with a very short notice period if the performance of an employee is clearly below his capabilities. Be advised that you will have to have proof (witnesses) of his performance / behaviour and that you might have (depending on the circumstances) to have given him one or more written notices (Abmahnungen) for it before you're allowed to terminate the contract.

Also, you are obliged to write a benevolent but truthful testimonial, which in this case would contain remarks on the employees poor performance.

But in any way, you should carefully weight the risk of being dragged to court and have to pay the fees for a trial against the gain of not having to pay the salary.

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I think this is a self-answering statement, no?

Is there any way to put him under the pressure to either do anything useful or face immediate termination?

Yes, getting threatened with immediate termination instead of being afforded delayed termination could force them to do something useful. Notice how I said "force" instead of "motivate".

If you wish to motivate then the only possible solution is to un-fire them if they complete tasks x, y, and z.

Overall, I don't understand your question. I read it as "Is the floor made out of floor?"

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    You can threaten him with immediate termination, but most lawyers I know would tell you that you'll get laughed out of court if you go through with it. He is doing work, he is showing up on time - and the bar for firing someone for "working slow" is pretty high in Germany. – Tom May 12 at 17:35
  • @Tom That was OP's suggestion. I only assumed that they have figured out the logistics of executing such a plan. – MonkeyZeus May 12 at 18:44
  • I've seen immediate terminations being handled. The OP doesn't mention the legal department, so he definitely hasn't figured out the logistics. You don't do immediate terminations without your lawyers, the bar for immediate terminations is high in Germany - in legal terms: ultima ratio – Tom May 13 at 5:57
  • @Tom "face immediate termination" are OP's words not mine. If you need clarification from OP about their ability to follow through with this then request it from OP. – MonkeyZeus May 13 at 14:20
  • @MonkeyZeus: "Immediate termination" are OP's words, but OP asks how it could be achieved. And Tom has an answer to that: via lawyers, if at all. Your answer just begs the question. – MSalters May 14 at 7:11
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This is why the longer the notice period the more ridiculous it is, and why most of the world has notice periods in the 2 weeks-1 month range. The way an employment contract works is: I do work, I get paid. I stop doing work, or my work is not good enough, I get fired, and I stop getting paid. I want to keep getting paid, so I keep doing good work.

The way a 3-month notice period works is: The company has already fired me, so I've stopped being paid (or at least I have a set date where, no matter how good my work is, I stop getting paid). The company is contractually obligated to keep me employed for the duration of the notice period so, no matter how bad my work is, they can't stop paying me (unless they find some way out of the contract). In this way, you've removed both the positive feedback for doing good work (continually getting paid), and the negative feedback for doing bad work (threat of stopping being paid). So, precisely what, might I ask, reason does an employee who has been laid off have for doing good work, or any work at all really? The fact of the matter is, there is none, modulo the contract stating "you must continue doing good work or we'll fire you even faster" (which, it seems, your contracts do not state, or else you would be doing that instead of asking this question, because this is precisely the case in which to exercise such a clause).

So, to solve your problem, you basically have 2 choices:

  1. You can ignore this employee. He continues to come into work, put in his absolutely minimal effort, and gets paid for 3 months, because that's what he's legally entitled to according to the contract. Just find some way to occupy his time.

  2. Find some other way out of the contract, by paying him time in lieu or giving him vacation, or something. Talk to him and ask him what he wants. I'm sure wasting 8 hours per day for 3 months in a job he's clearly clocked out of is not his idea of a good time either, so he'll probably be amenable to negotiation. Be aware though, that if your contracts do not contain a "buy-out" clause which you can exercise to force the employee to leave without serving their 3-month notice, you're negotiating from weakness; he can simply "no-sir" you and force you to pay him the full 3 months' pay as he is contractually entitled to.

And then, you should go to HR and vehemently explain to them why a 3-month notice period is patently ridiculous and they need to do something about it to prevent cases like this.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi May 12 at 12:32
  • In Germany, notice period is controlled by law. Afaik after 2 years of continuous employment, they must give a 3 month notice period. That must be done, even an employment contract (Arbeitsvertrag) can not decrease it. This is bad also in my opinion, it only causes us to get a job much harder. – Gray Sheep May 12 at 13:42
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    The company can still give you a bad AZ. You can attack a bad AZ before court, and you will have a good chance for that - if the company can not prove that you were really bad. However, this is a much bigger trouble than just working well (or... not much worser) in the last months. Note, typically legal insurance is about 50-100 EUR/month, and the hourly cost of a lawyer is about 300 EUR and the whole process might last 1-2 years long, but you need the good AZ now. – Gray Sheep May 12 at 15:21
  • @Gray and that is where membershi in a union helps. Unions provide free and 0 cost lawyers as benefit of joining (and pying their monthly union fees) – Patrick Artner May 13 at 9:37
  • @PatrickArtner Yeah, but Unions are only at big companies, and get into a big company, that is not very easy. Happens typically over outsourcing, so they need to employ you directly after 2 years. As far I know, about 20% of the "external Mitarbeiter" can survive there 2 years long. – Gray Sheep May 13 at 22:56

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