Illegal warning for refusal on a personal interview.
The new ruling by the Federal Labour Court deals with the question of the admissibility content of a personal conversation apart, as is often arranged in cases of harassment by employers. For the first time made clear that the content can be the employer-side law transfer only a concretization and specification of obligations under the current labor contract. The content of the employment contract itself may not be the subject of the transfer law. Staff talks, which aim to change the employment obligation, the employee not to participate in the appraisal interview. The verdict was the following facts:
The applicant worked for the defendant, a facility for the elderly as a nurse. Because of economic difficulties the defendant completed it at 01 November 2006, a staff meeting with all employees on whose objective was to induce people to part of the 13th Monthly salary to give. The workers refused the reduction of its 13th Monthly salary to agree. After the refusal of the workers, the defendant was under the 13/11/2006 one meetings with the employees, their objective remains the reduction of the 13 Monthly salary was. The applicant appeared for the requested appointment in the Office of Personnel Director, informed the latter that it was prepared only to a joint hearing with the ladies, a private conversation with the personnel manager would not be out of it be. The personnel manager rejected a renewed group conversation and gave the applicant because of "refusal of work performance," a warning.
I. Reasons
The trial court makes clear in the grounds, is excluded under what circumstances a warning for refusing to participate in a personal interview. Part of the managerial authority of the employer are only specific items of the contract. The transfer of the employer under § 106 GewO includes only the specification of duties of the employee under the current contract, but not to change the employment contract. The employer may in its reasonable discretion, place and time of performance as well as the order in operation and the conduct of the employee in the company made the subject of operational instructions, if these points are not already covered exhaustively labor contract.
A personal conversation that a change in the employment contract, such as a pay cut, the goal has pursued an improper, not covered by the Directorate of Legal purpose. The contract represents freedom as part of private autonomy there is anyone to decide if he signs a contract or change. The applicant was not obliged to agree to the proposed pay cut.
The defendant had a pay cut reach the plaintiff nurse only on the path of change termination. Since there was no obligation to contract for the applicant, it was alone in the field of decision to the applicant if she would accept the pay cut. The defendant asked the applicant no more than the illegal abandonment of freedom of contract. Once an employer sets up such unauthorized request to the employee, enforcement is precluded by means of coercion. A not on the law in muted goal can not be enforced by means of a warning.
II consequences for the employee
According to the Decision reasons There is now certainty for workers. The Federal Labour Court has held in its decision clearly limits the right of instruction. Staff meetings for the purpose of specification of existing employment contracts are allowed. Personal discussions that follow a different goal, which will change the employment contract as such, to achieve weight reductions, reductions in the numbers of hours, etc. are not covered by the Directorate of Law. The practical consequence of this decision is hard to miss. Workers who refuse to "one discussions" with the hiring manager to take part because they talk to because of the announcement with a change of employment opportunities may have to expect, but not reprimanded. After this clear decision of the Federal Labour Court, only to anyone who received a warning for non-participation in a personal conversation, be advised to contact immediately to a specialist employment lawyer. Unauthorized warnings need will be removed from the personnel file, since the risk increases with each warning to termination.
lawyer Dr. jur. Frank Sievert
Hamburg, 01.07.2009
Contact:
Office: Dr. jur. Frank Sievert
Alster Kamp 26, 20149 Hamburg
Phone: 040 / 51 97 94
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www.mobbing-rechtshilfe.de/
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