Rücknahme Kündigung Arbeitsvertrag Arbeitnehmer Muster

Many employees in Germany consider resigning from their jobs at some point. However, circumstances can change, and you might find yourself regretting your decision. Fortunately, German labor law allows for the possibility of Rücknahme der Kündigung – withdrawing your resignation. This article provides a comprehensive guide to understanding the process, requirements, and potential pitfalls associated with retracting your resignation in Germany.

Understanding the Basics: Kündigung und Rücknahme

Before diving into the specifics of withdrawing your resignation, it's important to understand the fundamental concepts. Kündigung refers to the termination of an employment contract, either by the employer (Arbeitgeber) or the employee (Arbeitnehmer). When an employee initiates the termination, it is called Eigenkündigung (self-initiated termination). The Rücknahme der Kündigung, or withdrawal of the resignation, is the attempt to reverse this process.

Crucially, a resignation is a unilateral declaration (einseitige Willenserklärung). This means it becomes legally binding as soon as it is received by the employer. This concept is important, as it forms the basis for understanding when and how a withdrawal is possible.

The General Rule: No Automatic Right to Withdrawal

The most important thing to understand is that you do not have an automatic legal right to withdraw your resignation once it has been submitted and received by your employer. Your employer is not legally obligated to accept your request to take back your resignation. The situation is different for the employer; they often require justification for terminating an employee, but that doesn't concern us here.

This principle is based on the concept of legal certainty (Rechtssicherheit). Once the employer has received your resignation, they can rely on that declaration to make plans, such as starting the recruitment process for your replacement. Allowing employees to freely retract their resignation would create significant uncertainty and potential disruption for employers.

How Withdrawal is Possible: Employer's Consent

The only way to successfully withdraw your resignation is with the explicit consent (Einverständnis) of your employer. This means your employer must agree to allow you to retract your resignation and continue your employment. This agreement effectively cancels your initial resignation.

To achieve this, you must promptly communicate your change of heart to your employer. The sooner you act, the better. Delaying your request could make your employer less likely to agree, especially if they have already started taking steps to find a replacement.

Key Steps for Seeking Employer's Consent:

1. Act quickly: Immediately after deciding you want to withdraw your resignation, contact your employer.
2. Communicate clearly: Express your regret and explain your reasons for wanting to retract your resignation. Be sincere and professional.
3. Submit a formal request: Put your request in writing. This provides a clear record of your intention and the employer's response. A sample letter is provided below.
4. Be prepared to negotiate: Your employer might be hesitant to agree. Be open to discussing potential compromises to address their concerns.

Reasons Why an Employer Might Agree

While an employer is not legally required to allow you to withdraw your resignation, there are several reasons why they might consider it:

• Your value to the company: If you are a highly skilled or experienced employee and difficult to replace, your employer might be more willing to accommodate your request.
• Good working relationship: A positive working relationship between you and your employer can increase the likelihood of them agreeing.
• Difficulty finding a replacement: If the job market is tight or the specific role is difficult to fill, your employer might prefer to retain you rather than face the challenges of recruitment.
• Mistake or misunderstanding: If your resignation was submitted due to a temporary emotional state or a misunderstanding, your employer might be more understanding.
• Avoidance of legal disputes: If there are potential legal issues surrounding your resignation (e.g., duress or unfair treatment), the employer might agree to a withdrawal to avoid potential litigation.

Reasons Why an Employer Might Refuse

Conversely, there are also many reasons why an employer might decline your request to withdraw your resignation:

• Already found a replacement: If the employer has already offered the position to another candidate, they might be unwilling to rescind the offer and disrupt the new hire's plans.
• Lost trust: Your resignation might have damaged the employer's trust in your commitment to the company.
• Disruptions to business operations: Allowing you to withdraw your resignation might disrupt planned organizational changes or projects.
• Negative impact on morale: Your resignation might have had a negative impact on the morale of other employees, and allowing you to withdraw it might further undermine team cohesion.

Exceptional Cases: Anfechtung der Kündigung (Contesting the Resignation)

In rare circumstances, you might be able to challenge your resignation (Anfechtung der Kündigung) based on legal grounds. This is different from simply withdrawing your resignation with the employer's consent. Anfechtung means you are claiming your resignation was legally invalid from the beginning.

The most common grounds for contesting a resignation are:

• Mistake (Irrtum): You made a significant mistake when submitting your resignation, such as misunderstanding the terms of your employment contract or making a calculation error related to severance pay.
• Deceit (Arglistige Täuschung): Your employer intentionally misled you into resigning.
• Duress (Drohung): You were pressured or coerced into resigning against your will.

Important: Contesting a resignation is a complex legal process and requires strong evidence. You should consult with a labor law attorney (Fachanwalt für Arbeitsrecht) as soon as possible if you believe you have grounds to challenge your resignation. There are strict deadlines (Fristen) for filing a challenge, typically within a few weeks of submitting your resignation.

Sample Letter Requesting Withdrawal of Resignation

Here is a sample letter you can adapt when requesting your employer's consent to withdraw your resignation. Remember to tailor it to your specific situation.

[Your Name]
[Your Address]
[Your Phone Number]
[Your Email Address]

[Date]

[Employer's Name]
[Employer's Address]

Betreff: Rücknahme meiner Kündigung vom [Date of Resignation]

Sehr geehrte/r Frau/Herr [Employer's Last Name],

hiermit beziehe ich mich auf meine Kündigung des Arbeitsverhältnisses vom [Date of Resignation], die ich Ihnen am [Date of Delivery] überreicht habe. Nach reiflicher Überlegung und aufgrund geänderter Umstände bedauere ich diese Entscheidung zutiefst.

Ich habe meine Entscheidung sorgfältig überdacht und bin zu dem Schluss gekommen, dass ich meine Tätigkeit bei [Company Name] sehr schätze und meine Karriere hier fortsetzen möchte. [ Briefly explain your reasons for wanting to withdraw your resignation. Be honest and professional. For example: "Nachdem ich die Gelegenheit hatte, die Situation zu Hause zu besprechen, habe ich festgestellt, dass meine Familie eine andere Entscheidung unterstützt." or "Nachdem ich mehr Informationen über die geplanten Projekte erhalten habe, bin ich begeistert von der Möglichkeit, weiterhin einen Beitrag zu leisten."].

Ich bin mir bewusst, dass meine Kündigung bereits in Ihrem Besitz ist und Sie möglicherweise bereits Maßnahmen ergriffen haben, um einen Nachfolger zu finden. Ich entschuldige mich aufrichtig für die dadurch entstandenen Unannehmlichkeiten. Ich bin bereit, alles in meiner Macht Stehende zu tun, um einen reibungslosen Übergang zu gewährleisten, falls Sie meine Rücknahme ablehnen sollten.

Ich bitte Sie daher höflichst, meiner Rücknahme der Kündigung zuzustimmen. Ich bin überzeugt, dass ich weiterhin einen wertvollen Beitrag zum Erfolg von [Company Name] leisten kann.

Vielen Dank für Ihre Zeit und Ihr Verständnis.

Mit freundlichen Grüßen,

[Your Signature]
[Your Typed Name]

Arbeitsvertrag Muster (Employment Contract Template) and Withdrawal of Resignation

It's important to review your employment contract (Arbeitsvertrag) to see if it contains any specific clauses regarding termination or withdrawal of resignation. While it is uncommon, some contracts might address this issue directly. However, the general principles described above will still apply.

Keep in mind that finding a generic Arbeitsvertrag Muster (employment contract template) online won't necessarily help you in this situation. Your individual contract is the relevant document. If you have any doubts, consulting with a lawyer is always the best course of action.

Conclusion

Withdrawing your resignation in Germany is possible, but it depends entirely on your employer's consent. Act quickly, communicate clearly, and be prepared to negotiate. While you don't have an automatic right to retract your resignation, a compelling case and a willingness to address your employer's concerns can increase your chances of success. In rare cases, you might have grounds to contest your resignation, but this requires strong evidence and legal expertise. When in doubt, seek advice from a labor law attorney.