Abusive Termination During the Probationary Period

Facts

X. AG (the appellant) terminated the employment of A. (the respondent) during the probationary period, as the latter refused to immediately give up his 20% employment with another employer. The Federal Court confirmed that this termination was abusive, as X. AG had given the respondent to understand at the time of concluding the contract that his other employment would not be an obstacle to his employment. Furthermore, the termination was a reaction to the respondent asserting his claim to the contractually agreed 80% employment.

Considerations

The Federal Court states that, in principle, a termination can also be abusive during the probationary period if it fulfills a case under Art. 336 CO or would otherwise be considered abusive in a regular employment relationship. However, in assessing the abusiveness, the purpose of the probationary period must be taken into account, namely to give the parties the opportunity to get to know each other and decide on a long-term commitment.

In the present case, the abusiveness lay in the fact that X. AG had given the respondent to…