The probation period plays a crucial role in the employment relationship by allowing the parties to get to know each other better and establish a relationship of trust, which is essential to determine if they are mutually suitable (ATF 134 III 108, c. 7.1.1). It also provides the necessary time for reflection before committing to a longer-term engagement (ATF 129 III 124, c. 3.1).
Duration and Modifications
The legal duration of the probation period is one month from the start of employment (Art. 335b para. 1 CO). This period applies regardless of the number of hours worked per week; part-time work does not extend this period (WYLER, Labor Law, 2nd ed. 2008, no. 2.3.2 p. 446).
However, the parties may agree in writing, through a standard employment contract or a collective agreement, to different conditions, including a shorter or longer duration, but this cannot exceed three months (ATF 136 III 562, c. 3).
Extension in Case of Absence
According to Art. 335b para. 3 CO, if the employee is absent due to illness, accident, or fulfilling a legal obligation, the probation period is extended accordingly. This extension is proportional to the duration of the absence.
Protection and Termination
During the probation period, the employee does not have special protection against termination of the contract (Art. 336c CO). This means that the employer can terminate the contract even if the employee is ill, pregnant, or on civil service, without these reasons being protected against dismissal (Wyler/Heinzer, Labor Law, p. 515). However, unfair dismissal is still applicable even during the probation period (Art. 336 CO).
The notice period during the probation period is 7 days (Art. 335 para. 1 CO). The parties can agree on a shorter or longer notice period, or eliminate the notice period altogether (TF 4a_347/2009 of November 16, 2009, c. 3.1).
Contact
For more information on the probation period or other labor law questions, the Valentin Legal Consultation is at your disposal. We invite you to visit us at our office located at Rue du Valentin 1, 1004 Lausanne. You can also contact us by phone at 021 351 30 00 or by email at info@cjdv.ch.
Comments