The content of testimonials is regularly the subject matter of
disputes and disagreements between employers and employees. In its
judgment of 13 December 2012 (ref. no. 9 AZR 227/11) the Federal
Labor Court has now expressed its opinion regarding the frequently
demanded clause of thanks and good wishes.
The plaintiff who was employed with the defendant as the manager
of a building supplies store received a testimonial stating an
above-average performance and behavioral rating after the
termination of the employment contract. The testimonial concluded
with the following sentences: "Mr. K will leave our company as
of 28 February 2009 for operational reasons. We wish him all the
best for the future". The plaintiff thought that the
concluding sentence was insufficient and claimed that it devalued
his good testimonial. Instead, the testimonial was to include the
following wording: "We thank him for his cooperation for many
years and wish him all the best for his future private life and
career". The Labor Court held up the action, while the Higher
Labor Court dismissed it upon the defendant's appeal.
The Federal Labor Court decided that the employer was not
required by law to conclude the testimonials with formulations in
which he expressed his thanks for the services provided by the
employee, regretted his leave or in which he wished him all the
best for the future. The minimum information required to be
included in a simple testimonial is the kind and the duration of
the work according to Section 109 (1) sentence 2 GewO [German
Industrial Code] Section 109 (1) sentence 3 GewO provides that the
employee may request that the information moreover covers the
performance and behavior during the employment (qualified
testimonial). Thus, statements as to the personal feelings by the
employer are not required in a testimonial. However, concluding
sentences in testimonials in which in practice the employer often
expresses personal feelings such as thankfulness or good wishes are
not "neutral to the assessment" but suitable to confirm
or qualify the objective statements made in the testimonial on the
employee's behavior and performance. If an employer formulates
such concluding sentences and the employee thinks that they are
inconsistent with the other contents of the testimonial the
employee may only demand to obtain a testimonial without any
complimentary close. In contrast, he is not entitled to claim a
concluding sentence in a certain desired form.
Thus, a right of the employee to have thanks expressed in his
testimonial cannot be derived from this due to the lack of a legal
basis, even if in practice, particularly in testimonials stating
above-average performance and behavioral ratings, the employee is
often thanked for his work.
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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