certificate of employment
The job reference (in Austria and in the public service in Germany Dienstzeugnis ) is in human resources , a certificate that the employer to the employee at termination of employment in writing shall issue.
Many human achievements are subject to an assessment, such as school achievement by means of a school report or the performance assessment or employee evaluation in companies or authorities . On the one hand, certificates generally give the appraised feedback on previous performance and, on the other hand, are an important basis, for example when applying for employment with other employers. The job reference serves the advancement of the employee and must therefore be benevolent due to the employer's duty of care .
The Reichspolizeiordnung from 1530 introduced "certificates for proper departure", which represented a combination of a work permit, certificate of good conduct and passport . Since then, no employer has been allowed to hire a servant or maid without the latter being able to prove the consent of the previous employer.
This practice only changed with the introduction of the “ servants' book ” in parts of Prussia from September 1846 and after the establishment of the Reich in March 1872 for the entire national territory , which was expanded in 1891 to include an assessment of leadership and performance behavior: “Upon dismissal of the servants the employers must enter a complete certificate of conduct and behavior in the servants' book. "The servants' book (or servants' book ) had to be presented to the local police before starting work. Anyone who received a bad report from their rule could apply for a new servant book from the police after two years if they could prove that they had behaved perfectly in the past two years. The virtues were diligence, loyalty, obedience, moral conduct, honesty. In the meantime there have been servants' books with the content of today's job references since 1813 . When starting work for the first time, every servant had to present his servant's book, which had to be handed over by the employer to the community for proper registration and then to remain in custody with the employer. They spread quickly; In April 1874, Carinthia issued a service regulations that required a service book. Since 1896 there has been § 630 BGB in the forerunner of today's BGB, which still spoke of the official certificate . This provision was similarly taken over into the version of the BGB which has been in force since January 1900. The current regulation of the official certificate in the Austrian ABGB has existed since January 1917 .
In the GDR , the job reference was only called “assessment” from 1945, from 1951 the term job reference became common in human resources in the FRG after the first legal publications had appeared.
In general, a distinction is made between simple and qualified job references. The simple job reference only contains information about the type ( occupation , activity ) and duration of the employment relationship . The qualified job reference also contains information about the work performance and leadership of the employee , whereby the outdated term "leadership" means social behavior. This is divided into behavior towards superiors , colleagues and customers .
- Private sector and public service
After the type of employer that knows the private sector , the job reference and the civil service , the service certificate . In the public service, the employer issues a certificate of service. In accordance with § 85 BBG, civil servants receive a certificate of service on request about the type and duration of the offices they hold if they have a legitimate interest in it or the civil servant relationship has ended. On demand, it must also possess the activity performed and the services services provide information ( § 85 BBG). The other employees can request a "certificate" upon termination of the employment relationship in accordance with Section 35 (1) TVöD . After completing their military service, soldiers must be issued with a certificate of service by the disciplinary superior ( Section 32 SG and ZDv 20/6, Annex 23). He can apply for a provisional certificate of service an appropriate time before the end of military service ( Section 32 (2) SG). The service certificate is intended to facilitate the transition to civilian life and must be worded appropriately with regard to the civilian employer and highlight the civil-professional qualifications .
Trainers who according to § 16 BBiG the trainees upon completion of the training relationship issue a written testimony, the information on the nature, destination and duration of the training as well as the acquired vocational skills, knowledge and abilities of the trainees must contain. At the request of trainees, information about behavior and performance must also be included.
Executive employees according to Section 5 (3) BetrVG , part-time workers , temporary workers, employees with fixed-term employment contracts , interns and community service providers are also entitled to a job reference .
- Finality of the certificate
With regard to the finality of the certificate, there is the interim certificate , provisional certificate and final certificate . With the interim reference, the employment or service relationship continues, while it ends with the final reference. A provisional certificate is a simple certificate in the public service according to § 35 Abs. 3 TVöD, which is issued before the end of the employment relationship.
- Interim report
If the employment relationship has not ended but there is a valid reason, the employee can request an interim reference. Good reasons recognized by the case law of the labor court are the transfer , the change of the superior , further training , promotion , drafting for military or community service, exemption as a works council , parental leave , company transfer according to § 613a BGB or higher grouping. There is no relevant statutory regulation. Often there is a collective agreement entitlement, for example in § 35 TVöD.
- Legal bases
The legal basis for job references is Section 109 (1) GewO , according to which the employee is entitled to a written certificate upon termination of an employment relationship . The issuing of the certificate in electronic form is excluded. The certificate must at least contain information on the type and duration of the activity ( simple certificate ). The employee can request that the information also cover performance and behavior in the employment relationship ( qualified certificate ). The GewO thus contains the two types of job references and includes an optional debt according to § 262 BGB , so that the employer does not have to issue a further qualified certificate at the employee's request if a simple certificate is issued. The obligation of the service provider to a job reference arises at the end of a permanent employment relationship according to § 630 BGB. In parallel to the GewO, information must be provided about the employment relationship and its duration and, upon request, must be extended to the services and management in the service.
- Certification principles
The job reference must comply with the principles of clarity , truthfulness , completeness and goodwill . Section 109 (2) GewO states that the certificate must not contain any formulations that make a statement about the employee other than that which is apparent from the external form or the wording (clarity of the certificate). In addition, the certificate issued must accurately reflect the work performance and social behavior of the employee if the assessment is benevolent (certificate truth). It should contain all essential facts and assessments that are important for the overall assessment of the employee (completeness). A testimony only has to be benevolent within the framework of testimony truth.
“The employer is not told which formulations he uses in detail. He is also free to choose which assessment method to use. The reader must just not be left in the dark how the employer assesses the performance. ”The employee is to be assessed on the basis of facts and - as far as possible - the certificate must give an objective picture of the course of the employment relationship. It must contain all material facts and evaluations that are of importance for the overall assessment of the employee and of interest to the third party. A certificate must describe the activities that an employee has performed in the course of the employment relationship so completely and precisely that future employers can get a clear picture. Insofar as there is a general custom for a professional group or in an economic sector to mention certain services or characteristics of the employee in the certificate, their omission is regularly a (hidden) hint for the certificate reader that the employee is rated below average or at best average in this characteristic ( eloquent silence ). The employee is then entitled to receive a supplementary certificate; this is dictated by the principles of testimony clarity and truthfulness. When describing the job, the employer has strict limits. When assessing leadership and performance, on the other hand, he has considerable room for maneuver . He is free to decide which positive and negative qualities and skills he wants to emphasize more than others. The benchmark is the average skilled and comparable employee in his company. The certificate issuer may omit insignificant items, but not tasks that have something to do with the employee's knowledge and performance. However, the certificate issuer does not need to mention activities that are irrelevant for an application. A certificate issuer may fold the certificate twice and put it in a standard envelope. The prerequisite is that the original certificate can be copied and that the creases in the certificate sheet are not visible on the copies, e.g. B. by blackening.
Encrypted certificate formulations ( certificate codes ) are occasionally used in working life . These are constantly recurring phrases that sound more benevolent than they are intended. The Federal Association of German Employers has 1,977 five single formulations for qualitative assessments ( "marks") recommended in employment references. Employment references must not contain ambiguous formulations with which the employee is criticized. That was decided by the Hamm Regional Labor Court. In the judgment quoted above, the court upheld the complaint of a nurse , in whose testimony the employee saw herself as a rebellious employee with the wording “She was very capable and able to speak her own opinion”.
If the employer has previously issued an interim reference, he is usually bound by the content of the interim reference when he issues a final reference. This also applies if the seller of the company issued the interim reference before a transfer of business and the employee requests the final reference from the buyer. It is generally not customary and also not permissible to indicate in the certificate who has terminated and what the reasons for termination are. On the other hand, however, the employee has a legal right to have the termination issue mentioned if the employment relationship has come to an end through his own termination. If the job reference ends with the typewritten name of the exhibitor and his / her position , the reference must be personally signed by the exhibitor .
- No mention
The following points must not be mentioned:
- Warnings ,
- Alcohol abuse ,
- Works council activity (exception: leave of absence longer than one year),
- Substance abuse ,
- State of health (exception: if there is a serious risk of acute danger to third parties, e.g. epilepsy ),
- Sick days (exception: if the absenteeism is considerable in relation to the total duration of the employment relationship, e.g. over 50%),
- Maternity leave / pregnancy ,
- Secondary employment ,
- Party affiliation , union membership ,
- Private affairs ,
- Religious engagement ,
- Severely disabled ,
- Criminal offenses (if they do not directly affect the employment relationship),
- Strike and lockout ,
- Criminal record ,
- Non-compete obligations .
One-off incidents or circumstances that are not characteristic of the employee, his leadership and performance - be they advantageous or disadvantageous for him - do not belong in the certificate.
- Assessment criteria
For the assessment of performance and behavior in a qualified certificate, the following criteria come into consideration, depending on the activity performed:
- Expertise and skills,
- Special knowledge ,
- IT and computer skills ,
- Foreign languages ,
- Further training (courses, seminars);
- Intellectual and creative skills:
- Expressiveness (oral and written);
- Social competence :
Communication and cooperation :
Work performance ,
- Labor , work behavior ,
- Work results , successes ,
- Leadership skills , management skills ;
Social behavior in the company
- Towards customers, superiors, colleagues, employees.
- Work performance ,
Key competencies deserve special mention .
- Grading scale
The following grading scale is hidden behind the wording:
|Formulation in the job reference||Grading|
|"Always done to our complete satisfaction"||very good performance|
|"Always done to our full satisfaction"||good performance|
|"Done to our full satisfaction"||fully satisfactory services|
|"Always done to our satisfaction"||satisfactory performance|
|"Done to our satisfaction"||sufficient performance|
|"By and large done to our satisfaction"||poor performance|
|"Tried to do to our satisfaction"||insufficient performance|
If the employer works “to the full satisfaction” or “always to the satisfaction” of the employer, this is assigned the grade “satisfactory”. An employee is only considered “good” in the sense of the satisfaction scale if he is certified that he has “always”, “always” or “continuously” worked to the full satisfaction of the employer. The overall assessment “to the fullest satisfaction” corresponds to the very good performance. In GDR job references (“assessment”) the phrase “... was always trying ...” - unlike in BRD certificates - was considered positive, because the employee had given his best and was positively noticed.
“Full” is an absolute adjective and, strictly speaking, cannot be increased to “full” or “fully”. However, the Austrian Supreme Court ruled that the wording "to full satisfaction" violates the prohibition of aggravation and therefore the grammatically incorrect variant must be chosen. Since standard formulations have been established for the various assessment aspects and grades, certificate generators that use specific text modules are also used in practice.
- Co-determination of the works council
If the employer creates certificates according to a standardized procedure, for example in the form of assessment criteria or grades, these are assessment principles which the works council must have a say in drawing up and using in accordance with Section 94 (2) BetrVG . The same applies to the staff councils in the public service according to the respective staff representation law . However, the employee is free to have the works council or the staff council checked whether the certificate issued by the employer meets the requirements.
- Limitation and forfeiture
According to § 195 BGB, the limitation period for employment references is three years. It occurs beforehand if the claim is forfeited or fulfillment has become impossible. This will always be the case when the employer is no longer able to issue a truthful testimonial. Like any other claim under the law of obligations, the right to testify is subject to forfeiture . According to case law, the claim is forfeited if the creditor (claimant) does not exercise his or her right for a long time and therefore gives the opponent the impression that he is no longer asserting the claim. Forfeiture can occur after ten months; that also depends on the circumstances of the individual case.
There is often a dilemma between the principle of truthful testimony and the reasonable benevolence required by labor law towards the employee; the testimony must not unjustifiably impede his further advancement. However, it must not convey an inadequate picture to the reader through omissions. Illegal omissions are given, for example, in cases of eloquent silence.
The problem is the tension between the practice of issuing certificates with regard to the performance and management evaluation of the employee and the case law with regard to the so-called burden of presentation and proof regarding the awarding of marks. Good and very good performance and leadership evaluations are the order of the day in the companies' testimony practice, so that empirically an evaluation of work performance between good and very good can be viewed as statistically average. On the other hand, in the event of a dispute about the certificate grade, the employee bears the burden of presentation and proof if he requests a better evaluation than "satisfactory" from the employer. In November 2014, the Federal Labor Court ruled that, despite the empirical surveys on the practice of certificate grades in job references, it adheres to its case law, according to which the employee has to accept a certificate with the grade “satisfactory”, unless he can explain and in the event of a dispute prove that his performance / his leadership behavior was above average or even very good.
But an employer can see the "facts" very differently than the employee. The assessment of performance is always subjective and can therefore also be wrong because people can be wrong. Objectively, the problem is difficult to solve. An employee contractually owes a service of medium type and quality (§ 243, paragraph 1 BGB), ie a "satisfactory service". If an employee wants to get a better evaluation before the labor court, he has, according to the Federal Labor Court, to present and prove facts that should result in a better evaluation. If the employer rates the performance below average, i.e. worse than “satisfactory”, is he required proof.
The right to a certificate in Austria results for workers from § 1163 General Civil Code (ABGB); For salaried employees , the claim is also derived from Section 39 of the Employees Act (AngG), which is almost identical to Section 1163 of the Austrian Civil Code. Apprentices have a legal right from § 16 BAG ( apprenticeship certificate ). The employee is entitled to a reference certificate at any time and can also request an interim reference during the employment relationship without giving reasons, but at his own expense. Upon termination of the employment relationship, the employee is entitled to a certificate of service at the expense of the employer. The employee must expressly request it to be issued, but this can be enforced for up to 30 years depending on the collective agreement. According to § 39 AngG, the employer is only obliged to issue a certificate “on the duration and type of service”. However, a qualified certificate of service is common. If the employer himself undertakes to do so, he must issue a “qualified” reference in addition to the “simple” work reference required by law. However, it must not contain any comments that make it difficult for the employee to find a new job. This regulation means that employers use a "secret code" when issuing a qualified certificate of service, which positively formulates negative comments. Negative statements may only be made if they have had a significant effect on performance or behavior and are a significant part of the overall assessment. In Austria, the employee can request an interim reference at any time, which includes the period of employment and the type of activity. There are always court disputes with regard to ambiguous formulations. The law stipulates that no comments may be made that make it difficult for the employee to find a new job. However, this regulation leaves employers enough leeway to express negative comments slightly positively, which is generally to be interpreted negatively.
In Switzerland, there is a legal right to a qualified certificate, which also assesses performance and social behavior. The claim arises from Art. 330a OR , for apprentices from Art. 346a OR as a simple job reference . A simple certificate (also known as a “confirmation of employment” in Switzerland) has more of the character of a certificate than a certificate. The qualified certificate is generally preferable for an application. If, for example, it is only a matter of proving previous employment to an authority, all that is required is a confirmation of employment. According to Art. 330a Para. 1 OR, the employee has the right to request a (qualified) job reference or, according to Art. 330a Para. 2 OR, only to request a (simple) confirmation of employment. Employers who only issue an employment confirmation of their own accord because they allegedly cannot write anything positive are therefore not behaving legally correctly. Even if a job reference has already been issued, the employee can still request an employment confirmation. The uncoded, transparent job references, which have been successfully drafted for years, do not have ambiguous formulations. A seal of quality clearly visible at the end of the job reference gives potential employers, such as the employee affected by the job reference, security that the job reference may not be interpreted at will. The linguistic bridging technique to be used is recommended for the authors of job references. With it, the rich, meaningful German language is fully available. It is common practice for an employer to hand over the job reference to the employee on the last working day without being asked. According to Art. 330a OR, an employee has the right to request a job reference at any time. This means that a claim already exists during the probationary period , at any time afterwards or even after leaving the company. The doctrinal opinion assumes that the limitation period for job references, based on the general regulation of Art. 127 OR, is ten years. The doctrine of “truth before benevolence” is very important in Switzerland. The employee can request an interim reference at any time, which includes the period of employment and the type of activity. It is the employer's duty of care. According to Art. 13 Para. 1 OR and Art. 14 OR, job references are required to be in writing.
- Anglo-Saxon legal family
In the Anglo-Saxon legal system , job references ( English letter of recommendation, letter of reference ) are letters of recommendation rather than assessments. Its content is not regulated by law or case law . While the "letter of recommendation" is addressed to a specific recipient, the "letter of reference" is addressed to an undisclosed (indefinite) group of addressees ( English To whom it may concern ). The job reference often begins with a request to this recommendation ( english recommendation ) to accept the candidate. This is followed by the previous employment period , the previous position and a job description. If at all, technical competence ( English ability ), work performance ( English performance ), honesty / trustworthiness ( English honesty ), leadership competence ( English conduct ) or punctuality and presence ( English timekeeping, attendance ) are mentioned. It is not advisable to simply translate German-language job references into English, as there is an inherent risk of making false friends . For example, while the high degree of flexibility ( English flexibility ) of a worker enjoys a positive status in German-language job references, in English it is regarded as indecision and stubbornness.
- Literature on job reference in the catalog of the German National Library
- Heinz-Günther Dachrodt, Erich Ullmann: Reading and understanding testimonials. Formulations and their meaning. ÖGB-Verlag, Vienna 2000, ISBN 3-7035-0809-4 .
- Steffi Grau, Klaus Watzka: Employment references in Germany. Critical analyzes of their creation and use in personnel selection . 1st edition. Springer Gabler, Wiesbaden 2016, ISBN 978-3-658-13919-3 .
- Peter Häusermann: Employment references - true, clear and fair. Tips and suggestions for responsible employers. 8th edition. Spectrum Media, Zurich 2011, ISBN 978-3-908244-08-0 .
- Günter Huber, Waltraud Müller: The job reference in law and practice. Legal basis, sample certificates, text modules, certificate analysis. 13th edition. Haufe, Freiburg i. Br./Berlin/Planegg near Munich / Würzburg 2010, ISBN 978-3-648-00332-9 .
- Hein Schleßmann: The job reference - the right to testify, reference language, modules, samples, information about employees. 22nd edition. Deutscher Fachverlag, Frankfurt am Main 2018, ISBN 978-3-8005-3289-6 .
- Georg-R. Schulz: Everything about job references, form and content, reference language. 8th edition, Verlag Beck-dtv Munich, 2009, ISBN 978-3-423-05280-1 (dtv) and ISBN 978-3-406-56459-8 (CH Beck).
- Gunnar Szymaniak: The job reference through the ages.Retrieved on December 6, 2017.
- Arbeitszeugnis.de: Overview of the certificate structure (PDF; 63 kB) Retrieved on December 13, 2017.
- Christian Sehn: Arbeitszeugnis Accessed December 6, 2017th
- ↑ Tobias Kollmann (Ed.), Gabler Compact Lexicon Entrepreneurship , 2009, p. 17
- ↑ Steffi Grau / Klaus Watzka, Arbeitszeugnisse in Deutschland , 2016, p. 1
- ^ Heinrich Graeff, Supplements and Explanations of the Prussian Law Books through Legislation and Science , Volume 12, 1850, p. 314
- ^ Karl Sieg, legal problems when revoking an employment reference , in: RdA , 1951, p. 413
- ↑ Hans-Joachim Reeb / Peter Többicke, Lexikon Innereführung , 2003, p. 80
- ↑ Sonja Schustereit / Jochen Welscher, job references for the public service , 2016, p. 15
- ↑ Günter Schaub, Labor Law Handbook , 2012, § 146, p. 994
- ^ BAG, judgment of January 21, 1993, Az .: 6 AZR 171/92 = NZA 1993, 1031
- ↑ Karolina Meisloch, The functionality of job references and reference systems in the German-speaking and Anglo-American legal area , 2017, p. 128
- ↑ BAG, judgment of August 12, 2008, Az .: 9 AZR 632/07 = BAGE 127, 232
- ↑ Hermann May / Claudia Wiepcke (eds.), Lexicon of Economic Education , 2012, p. 758 f.
- ↑ BAG, judgment of December 11, 2012, Az .: 9 AZR 227/11 = BAGE 144, 103
- ^ BAG, judgment of October 14, 2003, Az .: 9 AZR 12/03
- ↑ BAG, judgment of February 20, 2001, Az .: 9 AZR 44/00 = BAGE 97, 57
- ^ BAG, judgment of August 12, 1976, Az .: 3 AZR 720/75 = DB 1976, 2211
- ^ BAG, judgment of August 12, 2008, Az .: 9 AZR 632/07
- ↑ BAG, judgment of February 17, 1988, Az .: 5 AZR 638/86 = BAGE 57, 329
- ↑ BAG, judgment of November 15, 2011, Az .: 9 AZR 386/10 = BAGE 140, 15
- ↑ BAG, judgment of September 21, 1999, Az .: 9 AZR 893/98 = NJW 2000, 1060
- ^ BAG, judgment of August 12, 1976, Az .: 3 AZR 720/75
- ↑ Heinz-G. Dachrodt / Volker Engelbert, Formulate certificates correctly , 2013, p. 10
- ↑ LAG Hamm, judgment of December 17, 1998, Az: 4 Sa 630/98 = MDR 1999, 1073
- ^ BAG, judgment of October 16, 2007, Az .: 9 AZR 248/07 = BAGE 124, 229
- ^ LAG Cologne, judgment of November 29, 1990, Az .: 10 Sa 801/90
- ↑ BAG, judgment of September 21, 1999, Az .: 9 AZR 893/98 = NJW 2000, 1060
- ↑ Stefan Löw, Current legal questions on the job reference , in: NJW , 2005, p. 3606 III 2
- ^ BAG, judgment of June 23, 1960, Az .: 5 AZR 560/58
- ^ BAG, judgment of October 14, 2003, Az .: 9 AZR 12/03 = BAGE 108, 86
- ↑ BAG, judgment of November 18, 2014, Az .: 9 AZR 584/13
- ↑ BAG, judgment of 23 September 1992, Az .: AZR 573/91
- ↑ Thomas Bliesener, Is the validity of biographical data a methodological artifact? , in: Journal for Industrial and Organizational Psychology 36, 1992, p. 12 ff.
- ↑ Wrong grammar helps when looking for a job. In: DiePresse.com. February 23, 2009, accessed January 11, 2018 .
- ↑ Arnulf Weuster / Brigitte Scheer, job references in text modules. Rational analysis, creation, legal issues , Boorberg, 12th edition, 2010. ISBN 978-3-415-03003-9 .
- ^ Jürgen Hesse / Hans Christian Schrader, text modules for writing certificates. Example formulations for the creation of job references for the target group of employees without a year, accessed on December 5, 2017.
- ↑ BAG, judgment of February 17, 1988, Az .: 5 AZR 638/86 = BAGE 57, 329
- ^ BAG, judgment of March 3, 1993, Az .: 5 AZR 182/92
- ↑ BAG, judgment of February 20, 2001, Az .: 9 AZR 44/00
- ^ BAG, judgment of August 12, 2008, Az.:9 AZR 632/07
- ↑ Sirko Archut, The qualified job reference , 2014, page 43 et seq.
- ↑ Study by the University of Erlangen-Nuremberg from May 2011, Personalwirtschaft 07/2011 , p. 35
- ↑ BAG, judgment of November 18, 2014, Az .: 9 AZR 584/13 = BAGE 150, 66
- ↑ Klaus Mayr, reference: What are employees entitled to? , December 2015
- ↑ Chamber of Labor Austria certificate of service
- ^ Austrian Chamber of Labor, keyword: Service certificate , 2020
- ↑ Swiss Federal Supreme Court , judgment of November 10, 2009, GeschZ .: 4A.432 / 2009
- ↑ Michel Pellascio, in: Orell Füssli (ed.), Commentary Obligationenrecht , 2009, 330a N 6