The trial period offers the parties to the employment contract the opportunity to determine if they are mutually compatible. This period has several particularities, such as the employer being able to terminate the employment contract more easily.
The trial period is governed by Art. 335b CO. It stipulates that for open-ended contracts, the trial period is one month. For fixed-term contracts, no trial period is mandated by law. However, the parties are free to establish one contractually. This trial period, however, cannot exceed three months (by analogy, applying Art. 335b para. 2 CO).
The existence of the trial period implies that the contractual relationship between the parties is new. According to jurisprudence, if two employment contracts concluded between the same parties follow one another immediately or closely, there will be no trial period for the second contract. The same applies when an apprentice is hired following their training by the same employer or in the case of a transfer of employment relationships within the meaning of Art. 333 CO.
If the employee is hired part-time or on-call, the Federal Supreme Court has determined that the duration of the trial period must be calculated "based solely on the duration of the employment relationship" without considering the amount of work actually performed.
It is possible to eliminate the trial period or extend it up to a maximum of three months by written agreement, standard employment contract, or collective labor agreement (Art. 335b para. 2 CO). If the parties agree to a trial period longer than three months, the agreement is partially null (Art. 20 para. 2 CO) and the trial period is reduced to its maximum, i.e., three months.
Art. 335b para. 3 CO provides for the extension of the trial period when it is interrupted due to illness, accident, or the performance of a legal obligation incumbent on the employee without their having requested to assume it. Thus, when one of these three situations occurs, the trial period is suspended and resumes once the impediment has disappeared.
In case of termination of the employment contract during the trial period, Art. 335b para. 1 CO provides for a notice period of seven calendar days, for any date. The parties may, however, deviate from this rule by extending or eliminating the notice period by written agreement, standard employment contract, or collective labor agreement. It is also specified that as long as the termination is given during the trial period, the specific notice period for this period applies. In other words, even if the employment relationship ends after the trial period, the timing of the termination is what matters in determining the applicable notice period.
During the trial period, certain protections for workers do not apply. Such is the case with protection against termination at an inopportune time, which, according to Art. 336c para. 1 CO, only applies after the trial period. Thus, the employer can terminate the contract of a person in the trial period when they are, for example, on sick leave, performing a mandatory service, or pregnant.
However, jurisprudence has decreed that protection against unfair dismissal (Art. 336 CO) applies during the trial period. This protection, however, must be examined while keeping in mind the purpose of the trial period, which is to allow the parties to determine if they are mutually suitable. Therefore, the judge must more broadly accept dismissal reasons related to the worker's personality before deeming the termination unfair.
If you need further information or support, please do not hesitate to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so that we can assist you with your needs.
Author: Caroline Bachelard
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