Despite an employee's previous employment with the same employer, an employment relationship with such employer can also be limited for a term of up to two years without material grounds if this prior employment lies more than three years in the past.
Pursuant to Sec. 14 para. 2 sentence 2 German Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristigungsgesetz, "TzBfG") the limitation of an employment contract without material reason is excluded if a fixed-term or indefinite employment relationship already previously existed with the same employer. According to the BAG, however, in a constitutionally conform interpretation oriented on the meaning and purpose, this provision does not apply if this employment relationship lies more than three years in the past (judgement dated 6 April 2011, docket no. 7 AZR 716/09).
In the opinion of the Seventh Senate, in cases of prior employment quite some time in the past, never-ending "limitation chains" that serving to hinder the statutory provisions are typically no longer possible. If there are more than three years between the end of the former employment relationship and the new employment contract that has a fixed term for no material reason, then such risk is excluded. This period corresponds to the legislative appraisal that is expressed in the regular limitation period of civil law.
The claimant was employed with the defendant, the Free State of Saxony, as a teacher on the basis of a fixed-term employment contract from August 2006 to July 2008. During her studies, she had worked for the Free State as a student assistant for a total of 50 hours from November 1999 to January 2000. As in the previous instances, her complaint against the time limitation of her employment relationship was also unsuccessful before the BAG.
The decision is to be welcomed in every respect, since a transfer to a previous employer is no longer untypical when one considers the employment biographies of many employees.
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