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  #21  
Old 13.02.2018, 23:51
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Re: Termination of employment even when a contract is accepted.

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Hi Edwin, they gave me an offer which I accepted after the 3 month notice period, only for them to turn around & say that your fired because I didn’t accept their 1st offer to change my contract after a few days.
Thing is that their offer was not valid for the 1st of April, this regardless of decent/legal or not. There was no offer to accept on the 1st of April since they only gave you an offer for the 1st of January. What you did was making a counter proposal which they did not agree to.

I do not want to be the bully here, but if you want to make a case out of it, it is important to name and see things correctly. The getting fired is not the legal problem here, what to me is the problem here is the short term on which they wanted to enforce a change this is to say the least indecent.
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  #22  
Old 14.02.2018, 09:36
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Re: Termination of employment even when a contract is accepted.

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Hi Samaire13, many thanks for your input. I don’t think that it’s very fair the way that they have conducted themselves, but even though this may be an “Änderungskundigung” can this help me in any way because I’m 99.9% sure that they won’t keep me in their company? Regards, Pete


Thanks for the links too
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It is not a Änderungskündigung since they after telling him he is fired never made an offer again.
I think it is, because it's pretty close to what happened to me a few years ago which netted me quite a generous payoff - way more than the 3 months legal obligation - in return for not taking my employer to court.

@Little Pete - the job is over 100%. Änderungskündigung is breach of contract and quite serious. If demonstrated in court - and I now think you might have a case to the extent I'd advise getting a professional opinion - it's expensive for the company. Some cases I've heard about over the years have resulted in large payouts to the victim, but you certainly shouldn't expect anything other than three months wages. Maybe a little more.

Again, the RAV have an interest in not paying you and making your (former) employer adhere to the law so you may find their lawyers will work with.

No legal action is ever certain, no matter how open and shut you feel the case might be. We obviously don't have all the facts and the full context here, so making definitive statements is difficult. And most of us aren't lawyers!
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  #23  
Old 14.02.2018, 10:26
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Re: Termination of employment even when a contract is accepted.

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An Änderungskündigung is cancelling the current contract by giving notice and after that making a new offer, this has never happened here. I am saying nowhere that they handled correctly but since they never made him an offer again after firing him it is not a Änderungskündigung.
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Thing is that their offer was not valid for the 1st of April, this regardless of decent/legal or not. There was no offer to accept on the 1st of April since they only gave you an offer for the 1st of January. What you did was making a counter proposal which they did not agree to.
Every time an employer wants to change ANY terms of the contract, they must follow the rules of an Änderungskündigung. They clearly offered him a different contract, first verbally, and then "generously" followed up in writing a few weeks later. It's not possible to change any terms immediately - unless the employee specifically agrees, but obviously that requires an open conversation that did not happen here.

If they had just terminated him at the end of December with 3 months notice by the end of March, they would have been perfectly fine. But they clearly didn't want to terminate him and only did so after he pushed back.

There was no need for another offer. They DID make one. They just didn't do it the way they were obliged to. They followed the "Änderungs"-part, but not the "Kündigungs"-part, and that is not how it works.

Pete also agreed to the revised terms and offer - but under the condition that they follow what he's legally entitled to. The termination was a response to him claiming his rights. The RESULT (i.e. terminated contract) may be legal, but the PATH there was not.

For me, this is all fairly straightforward and pretty much the same situation as in the link I posted. But as said, I am not a lawyer, and as always in legal matters, there are many grey zones and I may be wrong. Hence the recommendation to inquire with an actual lawyer.
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  #24  
Old 14.02.2018, 12:38
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Re: Termination of employment even when a contract is accepted.

https://www.weka.ch/themen/personal/...g-abgewickelt/

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Eine Änderungskündigung - wie der Begriff suggeriert - gibt es im rechtlichen Sinne gar nicht. Es gelten deshalb die üblichen Regelungen der Kündigung. Eine Änderungskündigung besteht darin, den Vertrag zu kündigen und gleichzeitig eine Offerte zur Weiterarbeit unter neuen Bedingungen anzubieten.
This did not happen.
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  #25  
Old 14.02.2018, 13:09
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Re: Termination of employment even when a contract is accepted.

A change notice - as the term suggests - does not exist in the legal sense. Therefore, the usual rules of termination apply. A change notice consists in terminating the contract and at the same time offering an offer for further work under new conditions.

Exactly. This did not happen. The employer did not follow the usual rules of termination. Three months notice of termination of the old contract, coupled with an offer under the new contract - which can only begin when the old contract has legally terminated. Instead, they gave five days (notice given 27.12.2017 for contract change 01.01.2018).
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Old 14.02.2018, 13:28
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Re: Termination of employment even when a contract is accepted.

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A change notice - as the term suggests - does not exist in the legal sense. Therefore, the usual rules of termination apply. A change notice consists in terminating the contract and at the same time offering an offer for further work under new conditions.

Exactly. This did not happen. The employer did not follow the usual rules of termination. Three months notice of termination of the old contract, coupled with an offer under the new contract - which can only begin when the old contract has legally terminated. Instead, they gave five days (notice given 27.12.2017 for contract change 01.01.2018).
Precisely
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  #27  
Old 14.02.2018, 13:47
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Re: Termination of employment even when a contract is accepted.

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A change notice - as the term suggests - does not exist in the legal sense. Therefore, the usual rules of termination apply. A change notice consists in terminating the contract and at the same time offering an offer for further work under new conditions.

Exactly. This did not happen. The employer did not follow the usual rules of termination. Three months notice of termination of the old contract, coupled with an offer under the new contract - which can only begin when the old contract has legally terminated. Instead, they gave five days (notice given 27.12.2017 for contract change 01.01.2018).
And thus this has nothing to do with Änderungskündigung.

OP got an offer, he refused the offer since it did not respect the notice period of the current contract and came with a counter proposal which they did not accept and got fired and never received an offer again.

It is indecent and immoral to do so, but it would be legally abusive if he would be forced into the new contract by them telling him when telling about the upcoming by them wanted change that he would get fired, they did not do that, only after he told them that he would not accept they gave him notice without ever making an offer again and thus this is not a Änderungskündigung which is specific to people getting fired and then receiving the new contract which they can accept or not.

Wanting the change at such short term is wrong, but they never enforced or introduced it. And getting fired with respecting the legal notice period is not nice, but not wrong.

I wonder if he would get anything out of this by making a case of it, and if so what he would get out of it.
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  #28  
Old 14.02.2018, 14:40
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Re: Termination of employment even when a contract is accepted.

Well, I read it and came to the opposite conclusion. Best left to the judge.

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...I wonder if he would get anything out of this by making a case of it, and if so what he would get out of it.
Depending on the dates, my guess would maybe an extra month's pay in lieu of notice. The point is that the threat of legalities might result in an out of court settlement with slightly higher compensation. It would also concentrate the minds of the ex-employer management, so they understand that they can't behave like that and get away with - so, if there is a case, it may benefit others.
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  #29  
Old 14.02.2018, 15:33
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Re: Termination of employment even when a contract is accepted.

How much can you lose when you go to employment court? The first step is a mediation which seems to be free. If no agreement is found it goes to the court. If you lose then you will have to pa the other party.

How much can you ask? Up to 6 monthly wages. But depending on the overall circumstances it could be lower.

To go at least do the mediation part seems to be a logical thing: No cost and potentially up to 6 monthly wages.
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