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Location: Germany

We have an employee that was laid off because his performance was unsatisfactory. His notice period is 3 months. We were hoping, he would at least do some trivial, but time-consuming tasks in that 3 months.

However, it looks like he suddenly has lost the ability to produce more than 10 lines of code that would compile. He does come to work on time, he doesn't browse random sites or do anything not work-related except visiting the restroom. He is never drunk during working hours, but he seems to sleep with his eyes open, waking up in random intervals to type some line of the code that doesn't make any sense.

Is there any way to put him under the pressure to either do anything useful or face immediate termination? Or he's smart enough not to get any legal reason for doing that, and we should simply let him not come to the office and search for new work instead, so that he doesn't block a desk, which is what he probably aims for?

Evorlor
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Danubian Sailor
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    Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi May 13 '21 at 00:06
  • Does Germany not have the concept of Garden Leave? [In short, you go home immediately & do not return. Your access permission is removed from all locations. You still get paid for the duration of your notice]. – Tetsujin May 14 '21 at 09:10
  • You say "he seems to sleep with his eyes open, waking up in random intervals to type some line of the code that doesn't make any sense."<--- Is he ill? Is he having a seizure? (e.g. an absence seizure or focal impaired awareness seizure). –  May 14 '21 at 19:56
  • @Araucaria-Nothereanymore. apparently only between 8 and 16:45 – Danubian Sailor May 14 '21 at 20:04
  • I'm being serious. People are often completely unaware that people with absence seizures are having seizures even whilst interacting with them. You wouldn't know if he was fitting outside work. But maybe your description involved a large amount of poetic licence. Can't tell. –  May 14 '21 at 20:15
  • I read a question like this and my brain starts screaming in the head.. The guy is treating you surprisingly well, tbh. – Pa_ May 15 '21 at 01:34
  • Under German law, this person must have been working with the company for 8-9 years, to have a notice period of 3 months. https://www.businesslocationcenter.de/en/labor-market/employment-law-and-collective-contracts-system/concluding-employment-agreements/ – Erwin Bolwidt May 15 '21 at 02:25
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    How can you tell the lines of code he write make no sense? Or the sites he visit? How can you tell that before he commit the code? Is the company spying on his computer? – FrozenButcher Jun 10 '21 at 13:30
  • @FrozenButcher he is not using his own computer. We everyone work on company computers. – Danubian Sailor Jun 10 '21 at 13:59
  • @DanubianSailor that does not give the right to spy on employee work tool. So where is the limit? I admit tracking browsing websites can be useful for IT filtering and security. I would accept this if it was on the contract that the company watch me typing. Outrageous anyway. Where is the limit? Cameras behind workers? On the Toilet? On the canteen? – FrozenButcher Jun 11 '21 at 06:19
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    just for curiosity's sake - how did this eventually play out? – Tom Aug 02 '21 at 06:21
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    @ErwinBolwidt by law. But many contracts deviate from the law, especially with the notice periods, and it's not unusual to have 3 months in a contract, independent of employment time. – Tom Aug 02 '21 at 06:22

15 Answers15

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So you fire someone for not being productive and then expect him to be productive?

Joke's on you.

He was already poorly motivated, now he's even less motivated. You should have expected this and just put him on inactive status.

jwenting
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    This is the answer--this plus the answer by @DaleM. Being let go for performance has to be REALLY stressful. Not exactly the sort of thing that would bring out the best in someone. Definitely wouldn't expect an improvement in the situation... Forcing him to continue to "work" kind of seems almost cruel... Better to just pay him severance and let him spend the three months searching for his next job, doing training, getting job coaching--trying to better himself, or at least find a better fit job. What he's doing now is wasting his time and OP's--a lose-lose. – bob May 12 '21 at 15:54
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    This is the only answer that actually makes sense. I don't really understand the OP, like what kind of motivation is even left for the employee at this point?? – Vahid Amiri May 13 '21 at 18:35
  • I find this answer a bit "harsh". OP is asking for a solution, not judgment. - ok he should have foreseen this - but that doesn't make the employee's action "right" or "for certain". With all respect for the person's feelings, I found the logical action for him in this situation is to do the job as best as he can - to prove the current employer "wrong about him" and gain as much experience as possible for the next job. Anyway, either him / the employer needs to take action to get out of this lose-lose relationship. – Hoàng Long Feb 29 '24 at 04:32
148

The best course of action is to let him stay home at this point. It is no use to expect him to be productive while on a working notice, given that his performance was already lacking. Give him pay in lieu of notice and free up a desk.

zmike
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I have some legal training in employee law in Germany (but IANAL and this is not legal advise).

Your guess is probably right. By doing a minimum of work, he is bullet-proofing himself against further actions on your part. The bar for immediate termination is rather high in Germany, and if your company has a Betriebsrat and/or is unionized, even more so. And since you already fired him, there is even less cause for an immediate termination - you would have to be in and prove a situation where it is objectively unbearable for you to let him sit out his notice period. Essentially, as long as he isn't stealing things or outright refusing to work, an immediate termination would only open him the door to sue you and take a nice severance package.

I also don't advise threatening him with or taking revenge with a bad reference ("Arbeitszeugnis"). That paper is supposed to represent his entire working time, not just the last few weeks, and an unfair reference can land you in court as well.

Legally speaking, there's not much you can do. You already dropped your largest bomb on him, you have nothing to threaten him with as long as he does a small amount of work, comes in on time and otherwise satisfies the letter of his employment contract, and he has made clear through his behaviour that he has no intention of playing nice until the end - which is entirely understandable.

What you can do is offer him a deal. Including some things others have already answered:

  • You can simply send him home on full pay, that way at least you get the desk free. Note that you can do this one-sided, it does not need his agreement. Note that you can not so easily forbid him from coming anyway - as long as he has an employment contract, you need to check with your lawyer on the details of forbidding him entrance ("Hausverbot").
  • You can offer him an exchange. Half the remaining salary if he agrees to shorten the notice period and end his contract immediately. This requires both parties to sign the paperwork.
  • You can give him very specific tasks to do, especially if he still needs to hand over work, document code or something else that matters to you. As the employer, you have the right to give him tasks and he cannot refuse if they are within the limits of his working contract. ("Weisungsbefugnis")
  • You can also offer him a deal for the last weeks, maybe something like every day he will get coding work that should take him about half a day to finish and when he's done he is free to go - this would give him more time for jobhunting and give you more work than now - win-win.
Tom
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    Maybe I'm misunderstanding the situation, but regarding " you have the right to give him tasks and he cannot refuse if they are within the limits of his working contract", I got the impression that they've already reached this point - the employer is assigning tasks, the employee is refusing to do them, and the employer is at a loss about what to do about it, which is the whole point of the original question. Was that not the case? – David Z May 12 '21 at 19:14
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    @DavidZ he's actually not refusing to do a single thing, but masters doing it as inefficient and slow as possible while still maintaining an impression he is actually working. – Danubian Sailor May 12 '21 at 20:46
  • @DanubianSailor Got it, thanks for clarifying. – David Z May 12 '21 at 20:52
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    From your description, it’s not even “create an impression of working”, but “create a minimally-plausible legal claim that he’s working”. – PLL May 13 '21 at 00:16
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    @DavidZ my point is about very exact and precise tasks, given in writing. Not "work on this project" but "document the code logic of lines 100-150 of the some_module.php file". I may have misunderstood the OP, but from the "he writes 10 lines of some useless code" part I had the impression he still works like most software devs - he picks bugs from the issue tracking system and works on them. – Tom May 13 '21 at 06:01
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    @PLL exactly. According to precedent court cases in Germany, an employee does not owe the employer to work at the best of his ability. He owes him an "average" amount and quality of work. And being slightly or even somewhat below average is not grounds for termination ("average" obviously includes people both above and below that value). There is a rare number of cases where terminations for slow work were held up in court and they were well below the average. One case I remember was 10%. And it has to be over some period of time - the courts recognize people have bad days and weeks. – Tom May 13 '21 at 06:04
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You sacked someone and let them keep access to your network?

If you are lucky, all he's doing is being ineffective. If you're unlucky, he's writing a script that will anonymously execute in a few month's time and delete all your backups.

Never, ever, ever let someone with a cause for grievance against you anywhere near anything important. You lock them out of the system, you sack them, you pay them their notice period and severance, you stand with them while they collect their personal belongings, you walk them out the front door, you collect their key, you shake their hand and you wish them luck.

Sadly, this is incredibly harsh on the 99% of employees who will do the right thing but the risk from the 1% is just too large.

As a commercial plumber who's had disgruntled employees fill drains with concrete and drill 3mm holes in shower risers (the bit after the taps so it only leaks while someone is having a shower), take it from me.

Dale M
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  • Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi May 12 '21 at 15:19
  • This is the sensible solution, have seen a team wreak havic because at the start they were told that on the last day they would be sacked... stunning example of a manager’s motivational skills :) – Solar Mike May 13 '21 at 05:53
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    That's heavily depends on situation and legislation and I'm not sure it's legal in Germany to cut off the employee from network only because employer is worried. You got to understand that you just can not for no reason prevent worker from fulfilling their working duties. – shabunc May 13 '21 at 08:03
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    It's quite the leap going from an unproductive employee to a criminal. – Pål GD May 13 '21 at 08:25
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    @PålGD sure, but it only takes 1. – Dale M May 13 '21 at 12:56
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    This is an extremely US-centered point of view. – Sebastiaan van den Broek May 13 '21 at 13:02
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    @SebastiaanvandenBroek - funny that. Looks like Dale is from Australia... :D – josh May 13 '21 at 16:18
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    @josh fair enough. Australia is closer to the US in terms of culture than they’d like to admit. This isn’t surprising. Definitely not the same in Germany however. – Sebastiaan van den Broek May 13 '21 at 16:23
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    Exactly this. At least in IT-related jobs it is common practice to just send a laid-off worker home ("Freistellung") to prevent potential malicious damage. Installing a destructive script on production servers is just too easy. – WooShell May 14 '21 at 07:03
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    @SebastiaanvandenBroek: I'm fairly certain that you would see 1/8" holes being drilled in the US, not 3 mm ;) – MSalters May 14 '21 at 07:07
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    In Israel - this sort of thing is extremely rare in most cases the employee does not have access to active client contracts (like sales people). Programmers that get fired usually get to spend the last few months doing knowledge transfer - it's fine if/when they job hunt and they are not expected to spend 99% of the time working super productively. Out of tens of people I've had to let go before I never got the sort of retaliation you're describing here. – Benjamin Gruenbaum May 14 '21 at 14:52
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    The key point when I fired people is remembering the person in front of you is a human who you had to let go and to actually help them find another job that suits them. Once you actually help people and not treat them like a commodity even-though you fired them there is no adversarial situation. They don't hate you and they wouldn't want to delete all your backups, they are even happy to help you sometimes. Poor performance isn't great for either side and in many (well, most) cases you can use your network to find poor-performers better suited work and actually help them. – Benjamin Gruenbaum May 14 '21 at 14:53
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    @josh 51st state – mcalex May 14 '21 at 15:39
  • @mcalex I think the 51st state is called Canada. 52nd is my home state of England... – josh May 16 '21 at 12:50
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    @DaleM, the trick is not to disgruntle people to an extreme degree. – Steve May 16 '21 at 18:04
  • @josh pick a western country, lol. However in England's case, TheTHE have already staked the claim. Interestingly it looks like the real 51st state is going to be Washington D.C. – mcalex May 17 '21 at 04:13
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Why not just give him 3 months pay as per contract and tell him to go home.

Problem solved.

And it will help the rest of the team as well.

Martijn
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Ed Heal
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    +1 for "it will help the rest of the team". Having someone do nothing and getting away with it is a huge demotivater – Martijn May 12 '21 at 07:27
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    @Martijn How is "doesn't actually have a job anymore" equivalent to "getting away with it"? – DonFusili May 12 '21 at 07:50
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    But he does have a job. And besides that, that doesnt really matter. There is someone next to you doing nothing. That is extremely unmotivating (I've experienced it myself twice) whatever reason. And if nothing is done about it he's getting away with it, even if it's just 3 months :) – Martijn May 12 '21 at 08:02
  • @Martijn & EdHeal, not sure how it will motivate the rest of the team to fulfill their notice period in future, if this guy is "getting away with doing nothing" and even gets garden leave as a benefit. – Chris May 12 '21 at 09:23
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    That is why 3 months notice period is stupid when someone is fired. But OK when they leave as their own choice – Ed Heal May 12 '21 at 09:34
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    @EdHeal There are reasons for which you could fire somebody on the spot even in Germany, but in OP's case the company decided to treat it as a lay-off. – Chris May 12 '21 at 09:50
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    @DonFusili How is being paid 3 months salary to do nothing not "getting away with it"? – Jon Bentley May 12 '21 at 10:17
  • "Why not just give him 3 months pay as per contract and tell him to go home." There could be a difference between getting fired versus gradual lay off especially with unemployment benefits. The other edge of the sword is that the company cannot put out a job posting for a job which is currently filled with a layed-off employee. – MonkeyZeus May 12 '21 at 16:46
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    @JonBentley His payroll checks aren't sitting at his desk doing nothing in plain view of everyone else. – IllusiveBrian May 12 '21 at 17:29
  • @EdHeal > I don't agree with that statement. Longer notice is actually more useful for you as an employee when you're getting fired (what seems stupid is hoping they'll continue to be motivated and force them to actually work through their notice period...) . When you're resigning (presumlably to switch jobs), longer period usually only hinders your employability cause 3 months can seem long for a company willing to hire you on the spot. This doesn't really apply to Germany though as 3 months seems to be fairly usual so employers know this... – Laurent S. May 12 '21 at 19:58
  • @IllusiveBrian i mean, that could be arranged... – hanshenrik Jun 07 '21 at 10:29
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Let me get this straight: you terminated this employee for unsatisfactory performance...

... and now you are expecting him to perform to your satisfaction.

Just... stop and think about that for a moment. In fact, think about it for a good long while. Think hard about it - really exert your brain.

Then, stop wasting everyone's time, and tell the former employee to go home and enjoy their 3 months of paid holiday.

Ian Kemp
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    Entirely unnecessary sarcasm. – mcalex May 14 '21 at 15:44
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    @mcalex sarcasm is a good in itself though ;P What I do see however is a misconception, they expected the terminated employee to work at the same underperforming level as before, but now they are even more underperforming (which is still something that one might perhaps not expect to happen but at least should calculate in as a possibility). – Frank Hopkins May 14 '21 at 19:33
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    @mcalex I don't think that word means what you think it means. – candied_orange May 15 '21 at 05:06
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    @mcalex In this case, I really do think the sarcasm was appropriate. To say it without the sarcasm would probably require the words that plainly stated how dunderheaded the entire idea of making an employee productive through termination is. – Edwin Buck Aug 03 '21 at 05:40
  • @EdwinBuck all of that is entirely conveyed within the first two sentences (ending in 'moment.' - I'm not sure if the overused ellipses represent separate sentences) The rest of the answer is superfluous and not in alignment with the CoC. – mcalex Aug 04 '21 at 08:15
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    @mcalex Being a native speaker of English, the only parts of the CoC that might have been violated are the parts pertaining to friendliness. That said, there are a few people who mistake the message with the delivery. For those people, stating that they are making a dumb premise cannot be said in a friendly way, In either case, I see this a much less harsh than what could have been said, and must less harsh than the CoC examples. Honestly, if the person is being let go for performance, attempting performance out of them in the final weeks is just dumb. – Edwin Buck Aug 04 '21 at 15:19
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You might motivate this person to do some actual work by giving him a task that can be done in less than a day/week when working at a normal pace. When the task is finished he can go/stay home for the rest of the day/week. Some might say this way of handling it rewards bad behavior. However if you just want him to do some stuff and don't get hanged up about it being unfair or setting a bad example/precedent, I think it might be a good tactic.

thieupepijn
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    This is a good tactic for workplaces in general, wins all around. Though it's rarely implemented. People should be paid to do work, not to fill a chair between 9 and 5. – Aequitas May 12 '21 at 04:10
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    You are aware of this being IT? And you are aware of a whole school of project planning (scrum) coming out of the fact that you CAN NOT RELIABLY KNOW HOW LARGE A TASK IS? And what if he can not finish the task at all - he can not even WORK on it (called a blocker)? Go home without pay? You literally argue for random hourly pay independent of knowledge and based on luck. Good luck having anyone with common sense agree to this. – TomTom May 12 '21 at 14:01
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    @TomTom If I understand right, this answer is saying "if he finishes it, he can go home early," not "if he doesn't finish it, he has to stay late." If the task turns out to be a 1 hour task, he works on it for 1 hour, goes home, and gets paid for the whole day. If it turns out to be a 20 hour task, he works on it for 8 hours, goes home, and gets paid for the whole day. It sounds to me like solution you're criticizing is a solution that nobody proposed. – Tanner Swett May 12 '21 at 17:31
  • @Tanner Swet, yes that's how I meant it. – thieupepijn May 12 '21 at 20:05
  • For IT, this has the potential to go horribly wrong and leave your code base full of things such as https://xkcd.com/221/ (Randall Munroe's getRandomNumber function) – Gwyn Evans May 13 '21 at 08:01
  • @GwynEvans Just like some other answers this again assumes the worst possible behaviour of a departing employee. Further this easily can be prevented by having code-reviews of commited code/code to be commited. – thieupepijn May 13 '21 at 11:33
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    @thieupepijn The point is that this strategy actively incentivises the choosing of quick-fix solutions and while the example was an extreme one, code reviews aren't going to prevent sub-optimal solutions without the reviewers typically needing to spend more effort than if they'd just fixed it themselves. – Gwyn Evans May 13 '21 at 13:33
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As the other answers point out, he does what he is legally obligated to do:

  • come in on time
  • do work (however much he does) his contract obligation of hours/week
  • do nothing as "revenge" for being culled from your working force

It is in the employees best interest to do exactly that - it removes your ability for early termination wich is quite difficult under german law.

If he is smart he will never agree to any kind of earlier severance because in german law this might give him a several months strike from recieving unemployment payment.

If you, as worker, -willingly- admit to no longer being employed (Aufhebungsvertrag) the german Arbeitsamt will freeze your unemployment payment because you "willingly choose to not work anymore". So you are out of work and do not get money while scurrying for a new job.

Suggestions of "how to pressure him" by promising a "bad" Arbeitszeugnis or give him shittier jobs then he had only give him grounds to sue you - so don't.

Send him home, let him get into job searching and pay his last months salary (not shortened - there is no legal way to do that). You might want to check with a lawyer if you can withhold money he would normally get from working late/overnight/weekends - there is a good possibility that that is not possible and you would have to pay them as if he normally worked because you do not provide him the ability to work by issuing a Freistellung.

Source: Background of working laws, not a lawyer.

Patrick Artner
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    Arbeitsamt will freeze your unemployment payment This is true when losing the job was one's own fault. This may be true, if one was terminated, also, because unemployment money is an insurance plan and one violated their duties to maintain employment. Secondly money is is then likely paid for only nine instead of twelve months. No money for the first three months of job search. – Bernhard Döbler May 13 '21 at 14:23
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As someone who works in Germany, and who switched jobs already, I can explain some things and give a possible solution:

First, the long notice period is relatively common (up to 3 months) and how "useful" it is depends was the employee fired, did he quit himself, what the situation between the employee and employer is, does the employee have another job lined up etc...

If you quit, you might want to move to the next job ASAP, but it's useful for the employer that you finish your own work and make a seamless transition to another colleague (benefits the employer).

If you got fired, as in this situation, you probably don't have a job lined up and waiting, so this brings you 3 months of time to actually find a job while still having income (benefits the employee).

The situation can be resolved quite easy but it depends of the contract, as for ex. I had in all my contracts the option to finish the notice period early if it was OK for both me and the employer. So, you could talk to the employee and try to come to an agreement where the notice period is shortened to 2 months, or even 1. This however depends on the employee since he needs to agree to that also.

When I switched my last job, I was mostly done with work already and didn't have anything lined up, so I agreed with my ex-employer to shorten the notice period, since this benefited both sides.

AdamV
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Chapz
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  • Long notice period is common because its minimal length is controlled by law. It depends on the length of the employment. As far I know, after 2-3 years, this minimal length is 3 months. This law is stronger than the employment contracts (i.e. if there is "1 month" in your contract on any reason, but you are fired after 3 years, you still have the right for a 3-month notice). – Gray Sheep May 12 '21 at 13:54
  • I was at my ex-employer for 2 years, and the notice period is 1 month by contract. I left in the end with 2 weeks notice because I quit in the middle of the month, and staying at my ex-employee for another month (or month and a half) would bring no benefits to both sides. I had nothing more to work on, so he would need to pay me for nothing, and I wanted to start at my new job ASAP which would in this case be pushed further back... – Chapz May 12 '21 at 14:06
  • If you found your next job so quickly, then congratulations. The typical length of a recruitment process is 1-2 months. From your first contact with the target company, until your first work day by them, you are lucky if it is only 2 months. But if you can leave earlier, typically with an additional agreement, you can spare your last salaries for them, making the leave nicer for them (might cause better AZ + continuous employment for you + you can say that you leave with a mutual agreement and not by firing). – Gray Sheep May 12 '21 at 14:13
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    Even if your contract does not allow shortening of the notice period, if both sides agree it would be in their best interest to do so, they usually can update the contract to add this possibility. Cases when it is not possible are rare and usually involve unions. – Mołot May 12 '21 at 16:17
  • @GraySheep I did not quit and then looked for another job, I had a signed contract by the new employer before I quit. When I quit, I was ready to start at the new job at any moment, so since my boss didn't see any reason for keeping me longer, he agreed to shorten the notice to the earliest date that is OK for both sides. Obviously, in OP's case, the employer will probably want to use the entire notice period so he can take the time and look for another job while still having income. – Chapz May 14 '21 at 11:12
  • @Chapz Ok, but how can be he sure that he will be able to start at 01.XX? It depends on the target company, most of them are not very eager to employ someone 3 months later. Typically they want a start next 01.XX. – Gray Sheep May 14 '21 at 11:18
  • @GraySheep As stated, every situation is different and depends on a lot of stuff. I suggested the possibility to talk to the employer who "does nothing" to shorten the notice period, but it depends on him, and his situation behind the scenes, will he take the offer or not. But other than that the OP has no other options to enforce the employer to suddenly do more in the notice period, where they haven't done the same before they let him go. – Chapz May 14 '21 at 12:12
6

I was in quite a similar case some months ago. I say to you, what might be in his mind.

He is now shocked and he is likely working very hardly behind the walls to find his next job. This distracts his focus from his work.

He knows that it is not okay. The danger of a bad Arbeitszeugnis is very deeply in his mind, the problem is that it does not mean that he can do too much. He must find his next job ASAP, and he does not know yet, how long will it last!

As you fired him, I think you knew well, that replacing him means some cost and some instability of your processes.

Make the things clear with him. Make a - mutually satisfiable - list of the things what he needs to do at last. Probably he won't make all of it, but most of it, yes.

You can also expect a sudden increase in his work quality if he has already got his next job. With luck, you can even spare some months of salary, if he can start his next job quickly.

You can use the threat of a bad AZ. Probably you can not fire him on the spot ("fristlose Kündigung"), because not working too much is not enough reason for that, but it does not mean that you can not threat him with it.

There are also other ways to motivate him. For example, as far I know, you can send him back to home any time ("Freistellung"), possibly with a decreased salary. Depending on his family situation, it might be even a more worse threat for him than a fristlose Kündigung.

Note: the threat of a bad AZ might be a joke for you, but it is very strong threat for him! Particularly if you can believably prove before a court, that he was bad at the end and he has not a legal insurance ("Rechtsschutzversicherung").

Actually, the leave in peace is much more important for him as for you. Talk with him, cooperate with him, have clear expectations and be nice with him if he follows what you agreed.

Tom
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Gray Sheep
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2

You can send the employee home with full salary since its the most painless way to go.

However, under German jurisdiction, its also possible to terminate his contract without or with a very short notice period if the performance of an employee is clearly below his capabilities. Be advised that you will have to have proof (witnesses) of his performance / behaviour and that you might have (depending on the circumstances) to have given him one or more written notices (Abmahnungen) for it before you're allowed to terminate the contract.

Also, you are obliged to write a benevolent but truthful testimonial, which in this case would contain remarks on the employees poor performance.

But in any way, you should carefully weight the risk of being dragged to court and have to pay the fees for a trial against the gain of not having to pay the salary.

SkeletorFromEterenia
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In the US legal system there is a concept called "Double Jeopardy." The idea is that you can't be tried for the same crime twice, using the same evidence.

For example, upon being convicted (or aqquitted) of robbing a convenience store, a person cannot be retried for the same robbery.

In your case, your organization has punished the employee with termination due to lack of performance. Now you notice that the performance of the employee has dropped. Either:

  • You lied about his performance, as it was the easiest item to terminate him over with poor evidence. His prior performance was adequate, and his current performance is not adequate.

or

  • His performance was inadquate in the first place, and now you suddently desire it to be adequate based on the motivation of being fired.

or

  • The reasons behind his termination include other items not being discussed in this forum, and now you are attempting to compel the employee to do stuff after you have punished him as fully as you can by terminating his employment.

In short, this plan of action to "motivate him" is starting to look a lot more like a plan of vindication or harassment.

If you wanted a relationship where you continued to provide guidance in improving his performance, it's called employment.

Edwin Buck
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I think this is a self-answering statement, no?

Is there any way to put him under the pressure to either do anything useful or face immediate termination?

Yes, getting threatened with immediate termination instead of being afforded delayed termination could force them to do something useful. Notice how I said "force" instead of "motivate".

If you wish to motivate then the only possible solution is to un-fire them if they complete tasks x, y, and z.

Overall, I don't understand your question. I read it as "Is the floor made out of floor?"

MonkeyZeus
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    You can threaten him with immediate termination, but most lawyers I know would tell you that you'll get laughed out of court if you go through with it. He is doing work, he is showing up on time - and the bar for firing someone for "working slow" is pretty high in Germany. – Tom May 12 '21 at 17:35
  • @Tom That was OP's suggestion. I only assumed that they have figured out the logistics of executing such a plan. – MonkeyZeus May 12 '21 at 18:44
  • I've seen immediate terminations being handled. The OP doesn't mention the legal department, so he definitely hasn't figured out the logistics. You don't do immediate terminations without your lawyers, the bar for immediate terminations is high in Germany - in legal terms: ultima ratio – Tom May 13 '21 at 05:57
  • @Tom "face immediate termination" are OP's words not mine. If you need clarification from OP about their ability to follow through with this then request it from OP. – MonkeyZeus May 13 '21 at 14:20
  • @MonkeyZeus: "Immediate termination" are OP's words, but OP asks how it could be achieved. And Tom has an answer to that: via lawyers, if at all. Your answer just begs the question. – MSalters May 14 '21 at 07:11
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Let me share my opinion on how you could actually extract code from this disgruntled employee. It is actually the stolen opinion of my incredibly smart ex ex boss.

There are stick people and carrot people. This guy is a carrot person. Prize them, offer a hefty money bonus, spend an hour 1 on 1 to ask what they would like, do it.

Or just pay the 3 salaries and send them home. One of the two.

Kilisi
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Vorac
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This is why the longer the notice period the more ridiculous it is, and why most of the world has notice periods in the 2 weeks-1 month range. The way an employment contract works is: I do work, I get paid. I stop doing work, or my work is not good enough, I get fired, and I stop getting paid. I want to keep getting paid, so I keep doing good work.

The way a 3-month notice period works is: The company has already fired me, so I've stopped being paid (or at least I have a set date where, no matter how good my work is, I stop getting paid). The company is contractually obligated to keep me employed for the duration of the notice period so, no matter how bad my work is, they can't stop paying me (unless they find some way out of the contract). In this way, you've removed both the positive feedback for doing good work (continually getting paid), and the negative feedback for doing bad work (threat of stopping being paid). So, precisely what, might I ask, reason does an employee who has been laid off have for doing good work, or any work at all really? The fact of the matter is, there is none, modulo the contract stating "you must continue doing good work or we'll fire you even faster" (which, it seems, your contracts do not state, or else you would be doing that instead of asking this question, because this is precisely the case in which to exercise such a clause).

So, to solve your problem, you basically have 2 choices:

  1. You can ignore this employee. He continues to come into work, put in his absolutely minimal effort, and gets paid for 3 months, because that's what he's legally entitled to according to the contract. Just find some way to occupy his time.

  2. Find some other way out of the contract, by paying him time in lieu or giving him vacation, or something. Talk to him and ask him what he wants. I'm sure wasting 8 hours per day for 3 months in a job he's clearly clocked out of is not his idea of a good time either, so he'll probably be amenable to negotiation. Be aware though, that if your contracts do not contain a "buy-out" clause which you can exercise to force the employee to leave without serving their 3-month notice, you're negotiating from weakness; he can simply "no-sir" you and force you to pay him the full 3 months' pay as he is contractually entitled to.

And then, you should go to HR and vehemently explain to them why a 3-month notice period is patently ridiculous and they need to do something about it to prevent cases like this.

Ertai87
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  • Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi May 12 '21 at 12:32
  • In Germany, notice period is controlled by law. Afaik after 2 years of continuous employment, they must give a 3 month notice period. That must be done, even an employment contract (Arbeitsvertrag) can not decrease it. This is bad also in my opinion, it only causes us to get a job much harder. – Gray Sheep May 12 '21 at 13:42
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    The company can still give you a bad AZ. You can attack a bad AZ before court, and you will have a good chance for that - if the company can not prove that you were really bad. However, this is a much bigger trouble than just working well (or... not much worser) in the last months. Note, typically legal insurance is about 50-100 EUR/month, and the hourly cost of a lawyer is about 300 EUR and the whole process might last 1-2 years long, but you need the good AZ now. – Gray Sheep May 12 '21 at 15:21
  • @Gray and that is where membershi in a union helps. Unions provide free and 0 cost lawyers as benefit of joining (and pying their monthly union fees) – Patrick Artner May 13 '21 at 09:37
  • @PatrickArtner Yeah, but Unions are only at big companies, and get into a big company, that is not very easy. Happens typically over outsourcing, so they need to employ you directly after 2 years. As far I know, about 20% of the "external Mitarbeiter" can survive there 2 years long. – Gray Sheep May 13 '21 at 22:56
  • @PatrickArtner Furthermore, my experience about big companies that the workers union are really needed there, because they are crap work. Under "work" they understand meetings and adapting the braindamaged rules and restrictions of their system. Also you can not learn anything by them. Getting into a Großkonsern might mean a safe job until retirement, but if you lose that safe job on any reason, you are dead on the job market. – Gray Sheep May 13 '21 at 22:59
  • @PatrickArtner Bonus fun: workers union typically fight the external workers and want to decrease their count... I remember as I was the only external in my department. There was a.... Betriebsratsammlung or so, I forgot the exact terminology. It was a big meeting of the Unions members. Of course I was not invited, all the others yes. But I knew, where and when it happened (Kantin), so I, officially knowing nothing, simply went there to get a lunch. ;-) So I could see the people with my own eyes, who worked so hardly to finish my job by two different Großkonsernen before the 2 years... – Gray Sheep May 13 '21 at 23:04
  • @PatrickArtner No, I do not hate them. For them, I was the auslander wanting to get their jobs. In their place I had been openly hostile to that auslander, not only covertly like they were. But I understand them. What I f*ly hate, that is the German Work Law, which in theory tries to defend the workplaces, in practice makes them nearly unreachable for me. – Gray Sheep May 13 '21 at 23:09
  • @GraySheep Only big corporations have a "tarifvertrag" applied to their workers. In those companies it makes even more sense to join the union to empower workers vs. company. But the benefits of unions like addition work (and maybe even out of work) accident insurance, free law advice and even free lawyers representing you before the court for work related problems etc are yours if you are a member even if your current workplace is not regulated by a Tarifvertrag. If you have problems being a "ausländer" you should talk to the Betriebsrat - one of their dutys is to prevent racism and help you – Patrick Artner May 15 '21 at 10:30
  • The problem for that is if you are not profitting from a Tarifvertrag and the increases your union gets for you is that you have to somehow replace the 1% the union fees take from your income by your own yearly "I a worth more because of .... hence give me more money"-talks wich depending on the company are hard to come by. – Patrick Artner May 15 '21 at 10:33
  • @PatrickArtner Externe Mitarbeiter profit nichts vom Union, actually the Union does all possible to cut their count. For the Union it does not matter if it happens by firing (not extending the timed contract) or by their direct employment (übernahme). In the Kantin, people talked only about the jobs of the internals, in quite a hysterical tone, externals weren't even mentioned - which already said a lot. A huge part of the workers were externals, yet they were not even mentioned. Of course I heard a lot of rumors, what fights is the Union doing to kill our jobs. – Gray Sheep May 16 '21 at 23:22
  • @PatrickArtner I once thought about that I ask the local leader of the Union. I just was curious, I've heard so much about them, but never had a contact with them. I wanted to know, what she will say. But I canceled the plan - I wanted a good contact with the company and it had looked as if I am playing background games against them. So I did nothing and my contract was not extended. – Gray Sheep May 16 '21 at 23:25
  • @PatrickArtner Since then, I apply only companies which are too small to have an union. And surprisingly, my career is going much better. This whole work law and union thing looks very disfunctional and hostile against me, I want to avoid this et al. – Gray Sheep May 16 '21 at 23:27
  • @PatrickArtner Yeah, and the bonus s*t in the picture: my CV is typically interpreted so that I was bad and this is why was I not übernommen by the Big Companies. And it decreases my market value (and employment probability) even until today. – Gray Sheep May 16 '21 at 23:33