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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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