Federal Labour Court, 06.04.2011, Ref.: AZR 716/09
Pursuant to Section 14 (1) TzBfG, a fixed-term employment relationship is only permissible if it is justified by an objective reason.
For reasons of legal certainty, Section 14 (1) sentence 2 TzBfG lists these objective reasons enumeratively:
- The operational need for the work performance is only temporary
- The time limit is set following training or studies in order to facilitate the employee's transition to subsequent employment.
- The employee is employed to deputise for another employee.
- The nature of the work justifies the time limit.
- The time limit is for testing purposes.
- Reasons relating to the person of the employee justify the time limit.
- The employee is remunerated from budget funds that are intended for temporary employment under budgetary law and is employed accordingly
- The time limit is based on a court settlement.
The list in Section 14 (1) TzBfG is not exhaustive in this respect, so that other objective reasons are also conceivable which justify the limitation of an employment relationship.
If there is no objective reason, a fixed-term employment contract is only permitted up to a total duration of two years in accordance with Section 14 (2) sentence 1 TzBfG and within this two-year maximum duration, the fixed-term employment contract may be extended a maximum of three times.
In addition, a fixed term without objective reason is excluded in accordance with Section 14 (2) sentence 2 TzBfG if a fixed-term or permanent employment relationship has already existed with the same employer.
In a new ruling by the Federal Labour Court, it has now addressed the question of whether a fixed-term employment relationship without objective grounds is possible if a previous employment relationship with the same employer dates back more than three years.
FactsThe plaintiff was employed as a student assistant for the Free State of Bavaria for a total of 50 hours during her studies from 1 November 1999 to 31 January 2000.
6 years later, she concluded a fixed-term employment contract with the defendant Free State from 1 August 2006 to 31 July 2008 as a teacher. In her complaint, the plaintiff objected to the fixed-term contract, arguing that she had already had an employment relationship with the Free State during her studies, so that Section 14 (2) sentence 2 TzBfG precluded a fixed-term contract.
Federal Labour CourtThe BAG dismissed the action as unfounded, as did all lower courts. The plaintiff's previous employment dating back more than six years did not preclude the factual limitation of her employment contract.
According to the BAG, "previous employment" within the meaning of Section 14 para. 2 sentence 2 TzBfG does not exist if the previous employment relationship dates back more than three years. This follows from the constitutional interpretation of Section 14 (2) sentence 2 TzBfG based on its meaning and purpose.
This is because the application of the regulation is only justified to the extent that this is necessary to prevent chains of fixed-term contracts and is therefore typically not necessary in the case of previous employment dating back a long time.
This is because the risk of abusive chains of fixed-term contracts generally no longer exists if there are more than three years between the end of the previous employment relationship and the new employment contract with an unfounded fixed term.
This period also corresponds to the legislator's judgement, which is expressed in the regular limitation period under civil law.
Source: Federal Labor Court
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