Federal Labour Court, 12.02.2013, Ref.: 3 AZR 121/11
Every employee and trainee is entitled to a qualified reference from their employer.
The legal basis for the right to a reference is § 630 BGB, § 109 GewO or § 16 BBiG in the case of training relationships.
In addition, the obligation to issue an employment reference may arise from the employment contract concluded in the individual case or the applicable collective agreement.
In the above-mentioned case, the Federal Labour Court had to decide whether the plaintiff employee could claim damages from the defendant employer due to the late issue of a reference.
Facts of the Case:
Employee applies for a job as a dispatcher following a qualification programme
The plaintiff worked for the defendant for around 9 months as part of a training programme, the aim of which was to qualify the plaintiff as a railway vehicle driver.
After completing the qualification programme, the plaintiff applied for a job as a dispatcher at company H. The application was rejected.
This company informed the plaintiff in a letter dated 14 January 2009, among other things:
In our last telephone conversation, you mentioned that you would submit your missing reference from your work at D AG at a later date.
Unfortunately, this has not happened to date.
We would like to integrate you and your experience into our company. However, please understand that due to this gap in your CV, which is of exceptional interest to our division, we are unable to hire you for the advertised position of dispatcher.
In an e-mail dated 24 February 2009, the plaintiff then asked the defendant to send the missing certificate, which was not issued to the plaintiff until 23 April 2009.
Company cancels due to missing reference, employee demands compensation from old company
Due to the delay in issuing the reference, the plaintiff then demanded compensation for lost salary in the amount of EUR 16,780 as well as compensation in the amount of EUR 1,381 for costs incurred for further applications and job advertisements. EUR 1,381 for costs incurred for further applications and job advertisements.
The labour court initially seized had granted the claim by default and later dismissed it following the defendant's objection.
Both the Labour Court and the Regional Labour Court dismiss the claim
The Regional Labour Court in turn dismissed the plaintiff's appeal. With his appeal on points of law, the plaintiff then sought to have the labour court's default judgment restored.
Decision of the Federal Labor Court
The Federal Labour Court followed the views of the lower courts and has now ruled that the lower courts were right to dismiss the claim.
The Federal Labour Court also sees no claim for damages by the employee
The plaintiff has no claim for damages against the defendant pursuant to § 280 para. 1 and para. 2, § 286 BGB.
At the time of the rejection of the plaintiff's application by the company H, the defendant was not in default with the issue of a certificate for the qualification measure.
Pursuant to Section 630 of the German Civil Code (BGB), upon termination of a permanent employment relationship, the employee may request a written reference from the employer regarding the employment relationship and its duration. Upon request, this certificate must include the performance and conduct in the service.
The creditor therefore has the right to choose between a simple and a qualified certificate. However, the right to a certificate pursuant to Section 630 of the German Civil Code (BGB) is a so-called conditional claim, which arises at the latest upon termination of the employment relationship, but whose fulfilment is dependent on the creditor having already exercised his right of choice.
Employee has not exercised his right of choice, therefore no right to compensation
However, the employer is only in default within the meaning of Section 286 (1) BGB with its obligation to issue a certificate in accordance with Section 630 BGB if the person obliged to provide the service has exercised his right of choice and - if the certificate is not issued - has sent a reminder to the debtor within the meaning of Section 286 (1) sentence 2 BGB. The plaintiff had not yet done so at the time of his application to the new employer.
Source: Federal Labor Court
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