conditions, content and dangers of retention
come regularly into my hamburger law practice bullied employees whose greatest desire is to be withdrawn immediately the attacks of mobbenden colleagues and superiors and come in peace to himself to. If these employees are not sick and do they seek, despite depressed mood seen a doctor for sick leave, so you can often still be helped.
The Civil Code is bullying the workers concerned, in principle in § 273 BGB entitled to have their job performance to retain elimination of bullying without losing entitlement to their salaries. The employee has towards his employers responsible for the care a right not to be bullied too. The latter must take precautions to ensure that the employee will not be bullied by colleagues or superiors. This applies regardless of whether the employer is itself part of the bullying or not. Prior to the exercise of his retention of the employee concerned to note, however, a lot.
First, the bullied employee the employer to point specifically to the bullying actions and give him time opportunity to correct the problems. Without concrete models the bullied worker to the individuals involved, the locations of bullying and the times at which this took place, the employer may not take action and remedy the harassment. In addition, the employer is bullying by colleagues at first did not directly responsible. Be detectable fault, ie the violation of his duty of care is only for lack of response in spite of knowledge of where the bullying situation. Periodically, the employer is therefore initially set by a bullying complaint under § 84 WCA about the situation in the workplace of the employee having regard to, and it is a deadline for the elimination of bullying opportunity to give. Furthermore
must the employer with the deadline will be announced that the employees in the case of non-remedial holding back of bullying his job performance.
The retention of work performance, however, is connected to the employee with high risks. If he assumes wrongly that he could hold back the performance because of bullying, may result in the loss of the compensation claim, for the warning, or even to behavioral termination of employment due to cause unjustified refusal to work. In addition, existence of that risk nor a lockout time when unemployment benefit. These dangers can be as an employee but missed. The
Federal Labour Court has given the employee a bullied determine interest in an action for a declaration that he is entitled to a lien on his job performance. Therefore, prior to the retention of their own work force is always on the action for a declaration of the existence of the lien for the workers. This was to be made only after consulting with an attorney use.
lawyer Dr. jur. Frank Sievert , Hamburg, May 2010
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