Question to the job coach: Can I give notice before starting work?

SZ reader Alexander W. asks:

I am looking for a job and have already received an offer. I’m supposed to sign the contract of employment within the next three days, starting on May 1st. But I also applied elsewhere and had a pretty good interview there. However, I won’t get a confirmation until next week at the earliest – by then I should have signed the other employment contract. Should I take the first job to be on the safe side and quit later?

Ina Reinsch answers:

Dear Mr. W., many people are looking for a job like you. Suddenly you have several jobs in prospect and feel in a dilemma. You’re not quite sure of your favorites yet, but you should already accept or decline another job. So rather choose the sparrow in the hand than the dove on the roof? Before you sign the first employment contract, you should take a close look at the contract terms and check the conditions under which you could terminate the contract before you start work.

Job coach: undefined

In some contracts, an ordinary termination – i.e. a termination in compliance with the notice period – before the start of the service is excluded or the notice period only begins to run from the time the agreed start of work. In these cases, the employee must first go to work. Employers in particular, who have often experienced that future employees are fickle in their decisions, resort to this clause. Because if the future employee drops out before starting work, the company usually has to start the application process all over again. This takes time and costs. For the same reason, some companies also require a contractual penalty in the employment contract in the event of termination before starting work, which must be reasonable – a question of the individual case. As a rule, half a gross monthly salary can be considered appropriate with a two-week notice period within the probationary period.

If there are no such contractual clauses, employees would of course have to comply with the notice period. A notice of termination before the start of the service must also be made in writing and be received by the contractual partner in good time. According to the case law of the Federal Labor Court, the period of notice begins when the recipient receives the notice of termination. At least the statutory period of notice according to § 622 of the German Civil Code must be observed. If a different period of notice has been agreed, this will take precedence. The statutory notice period is four weeks to the 15th of the month or to the end of a calendar month. If a probationary period has been agreed, the statutory period of notice is two weeks.

You should therefore check whether you can cancel in good time so that the notice period ends before the first working day. Then you don’t even have to start the job. However, if the notice period ends after that, you must work for your new employer until the end of the notice period. You are then also entitled to wages. Not showing up for work despite this obligation is not a good idea. In doing so, you make yourself liable for damages to the employer.

A termination before the start of the service is usually unpleasant for both sides. The applicant must admit a mistake and disappoint the employer. The future boss suddenly finds himself without the labor he longs for. Whenever possible, you should avoid this situation. But sometimes life is different. In the short term, the long-awaited dream job comes your way and there is no longer any possibility of resigning in good time. Perhaps you can arrange a later start date with the new employer and quit the job you would have to do within the agreed probationary period, or even better, tell the employer the truth and ask for a severance agreement. Be fair in any case. As the saying goes: You always meet twice in life.

Ina Reinsch is a lawyer, author and speaker in Munich. Her main focus is on labor law.

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