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I have accepted an offer and signed a contract that starts next month (from August).

However, now, I have a new job offer that I prefer. I would like to accept it and sign a contract for this new offer that starts from September so that I resign later after the employement from the first contract has started (using two weeks period notice).

Do you think it is possible and if there may be any problem?

The reason I don't resign the first contract before its start is that it incurs a penalty cost. But instead, since it is a probation period, I should be able to legally resign with a period notice of two weeks and start my next contract next month.

P.S.: Insights into German employment law would be appreciated

-------------edit------------ a link to the contract template can be found here

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    It makes no sense for rescindment of a contract to trigger a harsher penalty than resigning midway. Hence the importance of giving more details about the contract. Jul 13, 2022 at 13:13
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    This was posted before on workplace. What’s important is how companies react to this behaviour. If this is in Germany, then IF the company can cause you trouble, they will. And they can. The next company might - just by coincidence - decide after two weeks that they don’t need your services either. Nothing to do with no phone call that they didn’t receive from the previous company.
    – gnasher729
    Jul 13, 2022 at 20:16
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    @gnasher729 How would the first company know the name of the second company? Is who you are employed with public knowledge in Germany?
    – Yakk
    Jul 13, 2022 at 20:45
  • @gnasher729 but if the contract says I can resign during the probation period, I should be able to do it with no problem or reason in the first week, right? I can avoid telling them my second company, or?
    – Alejandro
    Jul 14, 2022 at 13:36
  • @IñakiViggers by resigning midway you mean in the probation period right? resigning within the first two weeks would be only possible for me. The contract says I can resign during the probation period. The next company is not a competitor.
    – Alejandro
    Jul 14, 2022 at 13:39

4 Answers 4

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Don’t be a dick

Tell your earlier employer that you can no longer take the position rather than have them waste time and resources on you.

You can try to negotiate a waiver of the break cost, most people will agree. If they want to hold you to the letter of your contract then you’ll know you were lucky not to work there; pay them what you owe them and move on.

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    This is the correct answer, but not on this site, as it's probably not illegal to be a dick in Germany.
    – mustaccio
    Jul 13, 2022 at 20:27
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    This doesn't seem to address that the contract, according to the OP, has a financial penalty when resigning before the start date. Jul 14, 2022 at 7:00
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    This is a bad answer. If they want to hold you to the contract, show up on day 1 and resign immediately. Since the first minute of your contract is in the probation period, you're free to resign without costs. Advising to pay the company is just insanity. The company may decide to pay you for two more weeks, but there you can probably reach a compromise where you don't work and nobody pays.
    – MSalters
    Jul 14, 2022 at 11:55
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    While I agree that this is the "right thing to do" from the point of view of human interaction, it's not really a good answer from a legal standpoint. A better solution would be to propose that the OP closely examine the contract (with a lawyer, if appropriate) to see what actions on their part actually trigger liability. Then, choose a course of action which resolves this situation such that the company is effectively informed that the OP won't be working for them for any significant period of time without actually triggering liability on the part of the OP.
    – Makyen
    Jul 14, 2022 at 12:31
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    For example, there are very likely lots of possible discussions between the OP and the company which wouldn't trigger any liability for the OP, but end in a mutually agreed modification of or termination of the contract, particularly given that doing so is really in the best interest of both parties. How, exactly, to proceed depends greatly on the specific details of the contract. Overall, it's quite unlikely that the contract is crafted in a way that actually precludes all mutually acceptable solutions that are both ethical ("right thing to do") and without liability for the OP.
    – Makyen
    Jul 14, 2022 at 12:31
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This would depend on the wording of the contract pertaining to resigning before the contract starts.

Normaly the notice conditions are the same as during the probation.

§622 - Notice periods in the case of employment relationships
(3) During an agreed probationary period, at most for the duration of six months, the employment relationship may be terminated with a notice period of two weeks.

Penalty costs are normaly for not showing up, not for giving notice - but depends on the exact wording of the contract.

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  • I have put a sample template of the contract in the question. The contract says resigning before starting the contract can be subject to a penalty proportional to the salary. but resigning during the probation period(e.g., the first week of work) seems completely valid.
    – Alejandro
    Jul 14, 2022 at 14:27
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    @azerila I have read it (§12(3)) and that is correct. Do this on the first day. You might even inform them of your intension (to give notice on the first day) now. This could lead to §12(4) coming into effect (may release the Employee from her/his duties under this Employment Agreement). Jul 14, 2022 at 20:56
  • I just worry if I inform them now about my intention for giving notice in the first week of my work, §12(3) may come into effect...
    – Alejandro
    Jul 14, 2022 at 21:09
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    @azerila Well, it is their fault that they included the Kündigungsverbotes in the first place. Your intention is not the same as actually doing it. You must remain willing to show up on the first day. You are giving them time to search for a replacement. If both parties aggree, the contract can be terminated. Jul 14, 2022 at 21:23
  • there are also terms in the contract about "claims". I wonder if resigning on the first week may allow the employer raising any claim, even if I have already told them earlier that I may terminate my contract in the beginning of my employement.
    – Alejandro
    Jul 28, 2022 at 21:48
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Can I sign a new contract before resigning from a job that has not yet started

Yes. What matters is that the start date of the new contract does not conflict with your commitments pursuant to your contract with the first employer. If it does conflict, a more detailed assessment of your actual, prior contract would be required.

I resign later after the employement from the first contract has started (using two weeks period notice).

Do you think it is possible and if there may be any problem?

Yes. In fact, that is what you need to do in order to avoid penalization. Clause §12(3) prohibits the act of giving notice before the start date of the employment.

Surprisingly, in an employment context the right to rescind a contract is by default not cognizable under German law when a clause like §12(3) is in the contract ("Ein Rücktritt vom Vertrag ist nicht mögllich. Es gibt auch kein Widerrufsrecth beim Arbeitsvertrag."). The Finanztip website does not provide sources supporting that assertion. However, the fact that a clause on "Ausschluß der ordentlichen Kündigung" is declared null and void in other contexts (example: §723 Abs. 3 BGB) suggests that this clause is lawful and enforceable in a situation like yours.

It would not hurt if you just request the first employer to remove that clause. With this request for amendment you are hinting the employer that your intent is to resign as soon as lawfully possible. That information is sufficient for the employer to ponder whether to (1) stick to the current terms of the contract, or (2) reduce costs and streamline the imminent process of having to hire a new person very soon. In neither case would you incur a breach of contract, since this approach falls short of giving notice.

For evidentiary purposes, make sure that your interactions are in writing. Under German law, email is not cognizable for certain procedures. But procedures and evidence are two different things. You need to secure some evidence so that the employer is not tempted to falsely accuse you of violating the terms of the contract.

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  • Thanks for the comprehensive answer. I can first speak with them verbally, without mentioning that I want to for sure end my contract before its commencement so that they can't use §12(3). Like asking them for their consultation and guidance since I have a new offer and saying that I would also stay and work for them if they can't help me more. Do you think with this, said verbally, they could still trigger §12(3)?
    – Alejandro
    Jul 15, 2022 at 19:55
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    @azerila "Do you think with this, said verbally, they could still trigger §12(3)?" §12(3) is already in force. I gather that you actually mean "trigger sanctions". Clarifying that you would comply if they don't release you is the opposite of giving notice. Hence they cannot penalize you. However, the idea of handling this matter verbally is risky because you would have no evidence with which to disprove any false allegations they might make in the future. Jul 15, 2022 at 22:21
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    I'm not fluent in German, so I can't actually confirm that this answer is "right". It is, however, approached in the correct way to be the right answer from a legal perspective (i.e. it suggests a course of action which is legal and minimizes the question OP's liability, while getting the question OP as close to a "perfect" solution as the situation allows). While "don't be a dick" is nice/good from a human point of view, this seems to be as close to that as is available under the laws in the question OP's jurisdiction and the contract which the company created and the question OP signed.
    – Makyen
    Jul 16, 2022 at 14:06
  • @IñakiViggers there are also terms in the contract about "claims". I wonder if resigning on the first day may allow the employer raising any claim, even if I have already told them earlier that I may terminate my contract in the beginning of my employement.
    – Alejandro
    Jul 28, 2022 at 21:45
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    @azerila "I wonder if resigning on the first day may allow the employer raising any claim". Yes. I presume that by "resigning" you mean giving notice on the first day of your employment. Giving an n-day notice (pursuant to the contract) does not immunize you as to any other liabilities you might incur during your employment there. It is otherwise unclear what you mean with "there are also terms in the contract about "claims"". Jul 28, 2022 at 22:41
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Sure, it is possible, but whether that is legal or ethical is another matter.

If your current contract is an exclusive one, that is, prohibits simultaneous employment elsewhere, then it proper, ethical and legal to notify your current employer if you wish to seek their permission or approval to grant an exception due to any reasonable mitigating circumstances.

However, if there is no conflict of interest and no harm done, then you will likely be fine to “ask forgiveness later if found out, than ask permission” as your current employer will have no reasonable grounds to sue you, even if the contract is exclusive, but if they are mean, they could penalize you from any salary they still owe you, for breach of contract.

By no conflict of interest, I mean absolutely no overlap in scope: the new employer cannot be considered even a potential competitor, supplier or customer or your current employer.

By no harm done, I mean you joining the new employer will not have any adverse effect on your current employer, including you being too tired to do both jobs at once, unless of course you are on vacation leave from current employer.

For example you work for PG&E on a contract but you have a new job offer from AT&T, then likely there will be no issue. Still, it is best to first consult your direct boss, with an off-the-records private advice/chat, rather than notify HR, if you are unsure.

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    but it's not exactly simultaneous employment. When I sign the 2nd contract, it's starting day would be after the last day of the first contract. But I will be doing the actual resignation 3 weeks after signing the 2nd contract when I have already started the first contract.
    – Alejandro
    Jul 14, 2022 at 14:29
  • Whilst the "don't be a dick" approach it very valid, also be wary that by doing this you may be invalidating your new contract. If you are under contract to another organisation, you may not be able to enter into a contract with the new organisation. Check the terms of the new employment contract, but likely it contains terms about you not working for someone else. If you sign that new contract whilst being bound by the old one, it's not a valid contract. If I were the new employer and I found my new employee had done something like that, I'd be tempted to not have them in my company. Jul 14, 2022 at 14:52
  • @wombling-ChrisPaine I am not sure how to find out if this is the case that signing the 2nd contract may be invalid. After all, usually, when people change jobs, they are still bound to their first contract also when signing the 2nd one, right? the contract itself only talks about 2ndary employment case. I am not sure if there is something general in German law or how to find out...
    – Alejandro
    Jul 14, 2022 at 20:59
  • Azerila, you ignore the fact that you are making an enemy, and they will want to hurt you, and they will find a way. Which would be totally avoidable if you didn’t refuse to follow cultural rules.
    – gnasher729
    Jul 15, 2022 at 4:48
  • @gnasher729 what do you suggest I do then, I really prefer the 2nd company
    – Alejandro
    Jul 15, 2022 at 11:31

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