Facts
[A.], born in 1962, took up a position as a Level 2 production employee at the Swiss Federal Railways (SBB) on March 16, 2020. His permanent employment contract provided for a probationary period of three months. On June 5, 2020, the SBB informed [A.] of its intention to terminate the employment relationship due to deficiencies in work performance, effective June 22, 2020. [A.] was on sick leave from June 15 to June 19, 2020.
The Federal Administrative Court dismissed the appeal filed against this. [A.] then filed a public law appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court decided that in the present case, the probationary period was extended by the days of illness. According to Clause 22 of the 2019 Collective Bargaining Agreement of the SBB (CBA), the first three months of the employment relationship are considered a probationary period. Pursuant to Art. 335b(3) of the Swiss Code of Obligations (CO), the probationary period is extended by the corresponding number of working days in case of actual shortening due to illness.
The Federal Supreme Court stated that the extension of the probationary period is to be calculated not by calendar days, but by the number of actual working…