Representation in matters of formal warnings, transfers and fixed-term contracts
Formal warnings, transfers and fixed-term contracts directly affect the existence and content of your employment relationship. Not every such measure is legally sound. We examine whether and how you can sensibly defend yourself against it.
The key points at a glance
Formal warning
A formal warning reprimands specific misconduct and warns of consequences under employment law if it is repeated. It is often a prerequisite for a later dismissal on grounds of conduct. If it is unjustified or too vague, you can submit a counterstatement to your personnel file or demand its removal.
Transfer
Under § 106 GewO, the employer may determine the content, place and time of work at its reasonable discretion within the scope of the employment contract. If a transfer goes beyond the contractual scope, a dismissal with an offer of altered terms or your consent is required. In establishments with a works council, the works council must generally be involved in transfers.
Fixed-term contracts
Under § 14 TzBfG, a fixed term is permissible where there is an objective reason. Without an objective reason, it is generally permissible only for up to two years with a maximum of three extensions, and not where you have previously been employed by the same employer. The fixed-term agreement must be made in writing before work begins. If a fixed term is invalid, the contract is deemed to be of indefinite duration.
Deadline for challenging fixed terms
The invalidity of a fixed term must be asserted by filing an action with the labour court within three weeks of the agreed end of the contract. After that, the fixed term is as a rule deemed effective.
How we proceed
We examine the formal warning, instruction or contract as well as your employment contract closely and clarify which facts the employer is relying on.
Not every measure that is open to legal challenge should be challenged immediately. We discuss with you whether a counterstatement, a conversation, a letter to the employer or legal action would best serve the employment relationship.
We represent your position vis-à-vis the employer and, if necessary, before the labour court – observing all deadlines.
Frequently asked questions
Do I have to take action against a formal warning immediately?
There is no statutory deadline for doing so. You can also dispute whether the warning was justified at a later stage, for example in unfair dismissal proceedings. Whether an immediate response makes sense depends on the individual case and on your relationship with the employer.
Do I have to be heard before a formal warning is issued?
As a rule, no. Some collective agreements, however, require employees to be heard before adverse matters are added to their personnel file, for example § 3 Abs. 6 TV-L. If this hearing does not take place, removal of the warning from the personnel file can be demanded.
Do I initially have to comply with a transfer?
That depends on whether the instruction is manifestly invalid. Anyone who does not follow an instruction risks a formal warning or dismissal if the instruction later turns out to be valid. Seek advice, therefore, before refusing a transfer.
Your contacts
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