Time limit
The admissibility of fixed-term employment relationships is regulated in the Part-Time and Fixed-Term Employment Act (TzBfG). According to § 14 para. 4 TzBfG bedarf die Befristung eines Arbeitsvertrags zu ihrer Wirksamkeit der Schriftform. An oral agreement on a fixed-term contract is permitted in accordance with Section 14 Para. 4 TzBfG, § 125 sentence 1 BGB is void. If the parties initially only verbally agree on the fixed-term contract before the start of the contract and if they record the oral fixed-term agreement in writing in an employment contract signed after the start of the contract, the verbally agreed fixed-term contract is deemed to be valid in accordance with Section 14 Para. 4 TzBfG, § 125 Sentence 1 BGB is void with the result that a permanent employment relationship is created at the start of the contract.
The later written down of the time limit, which was initially only agreed orally, does not mean that the initially formally void time limit becomes retroactively effective. Continuing this jurisprudence, the Seventh Senate decided in its judgment of June 13, 2007 ( 7 AZR 700/06 ) that the situation is different if the parties did not agree on a time limit at all before the start of the contract or if they made an oral agreement on a time limit that was substantive deviates from the time limit contained in the employment contract signed after the start of the contract. In these cases, the written employment contract not only sets out in writing a previously agreed verbal fixed-term contract, but rather a fixed-term agreement that deviates from the previously verbally agreed and is therefore independent and which satisfies the written form requirement is made for the first time. According to § 14 Abs. 1 Sentence 1 TzBfG, the limitation of an employment contract is permitted if it is justified by an objective reason.
According to § 14 para. 1 Sentence 2 No. 1 TzBfG, there is an objective reason for the limitation if the operational need for the work is only temporary. In its judgment of January 17, 2007 ( 7 AZR 20/06 ), the Seventh Senate decided that this requirement is not met if the employer only employs an employee on a temporary basis because he intends to carry out the work tasks assigned to him from a later date to be done permanently by temporary workers. The use of temporary workers simply eliminates the need to employ employees who have an employment relationship with the business owner based on an employment contract.
However, this is not relevant to the factual reason for the temporary operational need for work performance. Rather, the decisive factor is the employment need within the employer’s operational organization. The use of temporary workers planned for the future is not any other, as defined in Section 14 Paragraph. 1 set 2 numbers. 1 to 8 TzBfG, which could justify the limitation of the employment contract with an employee who has been employed in the meantime. An objective reason justifying the limitation of an employment contract is according to Art. § 14 Abs. 1 Sentence 2 No. 2 TzBfG also applies if the fixed-term contract follows training in order to facilitate the employee’s transition into subsequent employment.
According to a decision of the Seventh Senate of October 10, 2007 ( 7 AZR 795/06 ), only the limitation of the first employment contract that the employee concludes following his training or studies can be based on this factual reason. A contract extension is not possible for the factual reason stipulated in this regulation. This follows from the fact of the fact of “connection” to the training and the purpose of the standard. Another factual reason that justifies the limitation of an employment contract is according to Art. § 14 Abs. 1 Sentence 2 No. 7 TzBfG if the employee is paid from budget funds that are intended for temporary employment under budget law and he is employed accordingly.
According to a decision of the Seventh Senate of October 18, 2006 ( 7 AZR 419/05 ), this factual reason requires the employee to be remunerated from budgetary funds that are provided with a specific substantive regulation on the basis of a comprehensible purpose. In confirmation of this case law, the Seventh Senate decided in its judgment of February 14, 2007 ( 7 AZR 193/06 ) that, in addition to the availability of only limited budget resources, the factual reason requires the predominant use of the temporary employee in accordance with the purpose of the budget resources allocated. The circumstances at the time the contract was concluded are decisive.
This also applies to the question of whether the employee was paid from the budget. However, it is not necessary that the time limit based on this factual reason is limited to the point in time until budget resources are available for temporary employment. Die in § 7 Abs. 3 of the Act on the Determination of the Budget of the State of North Rhine-Westphalia for the 2004/2005 Financial Years (HG NW 2000/2005) provides for the recruitment of temporary staff in the event of the temporary absence of the position or position holder, Section 14 Paragraph 1 Sentence 3 No. 7 TzBfG sufficient purpose. According to § 15 para. 5 TzBfG, an employment relationship is considered to be extended for an indefinite period if it is continued with the knowledge of the employer after the period for which it was entered into and the employer does not immediately object.
In confirmation of its previous jurisprudence, the Seventh Senate decided in its judgment of July 11, 2007 ( 7 AZR 501/06 ) that the occurrence of the circumstances described in Section 15 Para. 5 TzBfG presupposes that the employee continues his work consciously and with the willingness to continue to fulfill the obligations arising from the employment relationship. The employee must actually carry out the contractual services after the contract period has expired. Any continued work by the employee is not enough. Rather, this must be done with the knowledge of the employer himself or a representative authorized to conclude employment contracts. According to Senate case law on higher education, the employer in this sense is not the head of the institute or another superior of the employee, but rather the rector of the university as the head of the general university administration. His knowledge is equivalent to the knowledge of those employees whom he uses to independently handle labor law matters. This primarily includes personnel administration employees who are authorized to conclude employment contracts.
In addition, people from other parts of the general university administration can also be viewed as employers if, due to the distribution of business within the university, they become aware of facts about the continuation of employment relationships of employees instead of the rector, such as the legal advisor of a university, who is responsible for processing employment contract procedures has been transferred. According to the established jurisprudence of the Seventh Senate, in the case of several successive fixed-term employment contracts, only the fixed-term nature of the last employment contract is generally to be examined for its justification. However, if, when concluding another fixed-term employment contract, the parties reserve the right to the employee to have the validity of the previous contract’s term checked for effectiveness, this term is also subject to time-limit control. However, a reservation declared unilaterally by the employee is not sufficient.
Rather, the reservation must be expressly or implicitly agreed in the contract. Continuing this jurisprudence, the Seventh Senate decided in its judgment of February 14, 2007 ( 7 AZR 95/06 ) that the employer is generally not obliged to agree such a reservation with the employee. If the employer offers the employee the unconditional conclusion of a further fixed-term employment contract and then rejects the employee’s request to conclude the follow-up contract with reservations while maintaining his offer to enter into the follow-up contract without reservation, the employer’s refusal is: agreeing on the reservation desired by the employee is not a disciplinary measure within the meaning of Section 612a of the German Civil Code (BGB).