In a pandemic, bankruptcy of enterprises is not at all rare. But workers do not always find out about it on time. What steps should be taken by an employee who has not received his “hard-earned money”?
Firstly, such an employee must first orally, and then in writing, ask the employer to pay the money earned, setting a specific term for this payment. Secondly, if the payment is not made within the specified period, it is necessary to indicate in the next letter that the case can be referred to the courts. Until the officially commenced bankruptcy proceedings, the employer is responsible for all payments.
After the employer has declared himself insolvent, that is, has filed a bankruptcy petition and started the appropriate legal process, the employee who has not received the money earned has the right to apply to the employment agency for a special type of payment ─ Insolventsgeld (employer’s bankruptcy benefit). The scope of Insolventsgeld includes not only the “clean” salary (after taxes and necessary insurance premiums), but also the payment of overworked hours, travel expenses, payment for work on holidays, vacation pay, payments to the pension and health insurance fund and all others due to this enterprise, payments for the last three months.
An employment contract (Arbeitsvertrag), a payroll statement (Lohn / Gehaltsabrechnungen), a tariff agreement of the company concerned (Tarifvertrag), a collective agreement (Betriebsvereinbarungen) and all insurance documents (including those which are concluded over the Internet). The application must be registered with the employment service within the first two months from the date of the bankruptcy declaration.
Employment agencies are rather slow in processing documents, so you should not count on a quick receipt of the entire amount due. However, if you have a certificate of unreceived wages, agency employees can quickly pay an advance in the amount of almost 70% of the estimated monthly salary.
Whether the company will continue to operate after declaring bankruptcy is a matter of concern to all employees. You can find out this from the persons who conduct the bankruptcy procedure: it is they who are obliged to draw a conclusion about the possibility of the further existence of the enterprise. Such persons include an arbitration manager appointed by the court, as well as auditors and appraisers conducting the bankruptcy procedure.
According to the existing Insolvenzgesetz law, the insolvency of an enterprise does not yet give rise to the dismissal of an employee in the absence of any other serious reasons. At the same time, trade unions and works committees must inform workers about the real economic situation and planned production changes at the enterprise. What to do if the employer does not pay wages and at the same time drags on filing an application for declaring him bankrupt? In this case, an employee who is not interested in continuing to work at this enterprise has the right, firstly, to register with an employment agency as a job seeker; second, to terminate the employment contract early (Fristlose Kündigung) and switch to unemployment benefits.
However, lawyers warn that you should not leave of your own free will without finding a new job, as problems may arise when receiving unemployment benefits, and the former employee may lose the right to receive severance pay (Abfindung).
Alex Gradov.
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