Student life is a time most graying graduates remember as something special — special above all because the novelty of living independently brings a light-headed euphoria, a kind of intoxication with youth. Then come relationships, the energy to study and to party, exams to sit and evening shifts to work. Altogether, that sense of life as a joyous feat fit only for an ancient god or a student is the very foundation of the myth of the wonderful student years. But it is also the time of one's first real disappointments. A student is easy prey for greedy operators eager to squeeze a person dry for pennies and toss them aside. This is where Karl Marx's famous line about capital stopping at no crime for the sake of superprofit would normally come to mind — but the heroine of this story thought of lawyers instead.
A Word for the Poor Student
From Our Firm's Practice
Even a verbal dismissal and an unsigned termination document can be challenged if the employer cannot prove its actions were lawful.
Under German law, students at German universities are allowed to work 120 days a year. Once a student goes over that limit, they need permission from the employment authority. Although education in Germany is free, a student's average monthly living costs come to roughly nine hundred euros — covering rent, a transit pass, and money for food, clothes, and leisure. Naturally, this pushes many students without parental support, or those who simply want to be independent, to look for work. But the student job market has grown tougher every year. And though student wages are hardly generous, the scarcity of openings keeps many hanging on to their jobs despite the mismatch between effort and pay.
Most often, students end up with a so-called Minijob — part-time work paying 450 euros a month. That amount is tax-free and requires no contributions. The rule was introduced in Germany in 2013, not with students in mind at all, but to draw the unemployed into the workforce. The younger generation, however, quickly caught on — and employers realized it was simpler to deal with inexperienced but highly motivated students. Incidentally, students receiving a scholarship are only entitled to tax-free income of four hundred euros a month. Health insurance is another matter: the employer only covers it if the employee works more than twenty hours a week. So how can an employer avoid extra costs while still getting maximum output? One large company found a way — and among its staff was Tamara, an economics student in Berlin. Let's say she got some legal experience out of the deal too.
Nothing But Work Between the Past and the Future
Tamara had moved to Germany with her parents as a teenager under the late-resettler program. She finished secondary school successfully, and went on to university just as successfully. Her parents didn't have the means to support her so that she'd want for nothing, and after her very first semester Tamara had already taken on two part-time jobs. She later kept just one, where her hours — and so her income — grew. It was the kind of job that people dreaming of a screenwriting or acting career in some Los Angeles might take, but Berlin has its own version of that story: since the city is flooded with tourists almost year-round, hospitality is one of its most dynamic sectors. Tamara landed a waitressing job at a hotel belonging to a large national chain.
The average net salary for a waiter in Germany is around one thousand three hundred euros a month. Tips add to that — not especially generous by German standards, but tax-free since 2002. Tamara didn't work full time and couldn't count on that kind of income, but she managed to earn around seven hundred euros a month on average. The employer, however, owed her no social benefits whatsoever — no health insurance, no sick pay, no paid leave — thanks to a particular contract system used throughout the hotel chain, under which Tamara and many other students in the same position worked. The system worked like this: a new contract was signed every single day, covering only the hours the employee actually worked that day. This trick, of course, let the employer dodge a great many of the costs of keeping staff. But Tamara, like her colleagues, gave little thought to such details. At the start of the week, you called the hotel, got your schedule, and off you went.
Tamara had been working this way at the hotel for more than two years. Everything went smoothly until a small personal conflict broke out between her and the head waiter. A brief exchange of barbs ended with Tamara hearing, at the end of her shift: "The restaurant doesn't need you anymore." Tamara just smirked — there were higher-ups than him, after all — and went home. On Monday morning she called the front desk to get her schedule and was stunned to hear that she shouldn't come in at all, since she'd already been told as much. Tamara felt as though she'd been thrown out on the street for no reason she could understand. A mix of the desire for revenge and the desire for justice led her to call our law firm.
Not Every Day Is a Holiday
At the meeting with the lawyer, Tamara described in detail how her work at the chain hotel was organized, what her duties were, and any complaints or commendations she had received. The lawyer needed to know whether there had been any other issues at work beyond the brief conflict with the head waiter. Germany has a specific Dismissal Protection Act. There are several general grounds for dismissal relating to an employee's personal qualities and abilities, namely: physical or emotional limitations; frequent illness making the employee unable to be deployed; and reaching pre-retirement age (58) with an associated reduction in capacity to work.
A dismissal based on the employee's conduct or qualities is justified where there has been an act breaching the terms of the contract (it makes no fundamental difference whether a "major" or "minor" term was breached), and also where there are grounds for a negative behavioral or medical prognosis going forward — including reasonable grounds to believe the employee can no longer be deployed as intended.
There is also a list of grounds relating to employee conduct: deception during hiring; refusal, in certain circumstances, to work overtime; taking leave without notice; a criminal offense, whether connected to work duties or not; concealing a criminal record; breaching competition rules (e.g. passing information to a competitor); discriminating against foreigners in the workplace or elsewhere; violating safety rules; sexual harassment; frequent lateness; and breaching an alcohol ban.
None of these grounds applied to Tamara's situation. There is no such ground in the law as "my superior doesn't like me." What did come as a complete surprise to Tamara, though, was that our lawyer was speaking to her in terms that only made sense for an open-ended employment contract — while Tamara had been signing a new contract every single day. Fortunately, she had kept every one of them.
As our firm's lawyer explained to Tamara, that kind of contractual arrangement is only valid for a genuinely one-off piece of work. Given the ongoing, continuous nature of the actual working relationship, the contract was, as a matter of fact, open-ended — and the employer, whether it realized it or not, would have to answer for that under the law. In the demand letter our lawyer drafted to the hotel's management, every circumstance of the hotel's serious legal error was set out — its unlawful use of one-off contracts to disguise what was, in fact, a continuous employment relationship — along with the possible consequences of our client's unlawful dismissal.
The response did not take long. Tamara was offered two thousand euros in compensation for her dismissal, which our client happily accepted. And as we later learned, the hotel's management not only revised the contracts of every waiter on staff, but also dismissed a couple of specialists from its own legal department. Thanks to our lawyers, then, the rights not just of Tamara, but of many of her fellow students working at the same hotel chain, ended up protected as well.
All rights reserved. Copying or republishing this article requires a link to the original source.
