Nullity of the extension of the probationary period in a fixed-term employment contract

Facts

Company [B. SA] hired Ms. [A.] starting from June 1, 1981 for a fixed term of at least two years, with a probationary period of six months. Not being satisfied with the performance of its employee, [B. SA] decided to extend the probationary period by one month, until December 31, 1981. On December 16, 1981, [B. SA] dismissed Ms. [A.] with effect from December 23, 1981. Ms. [A.] objected to this dismissal, arguing that the extension of the probationary period was not valid.

Ms. [A.] filed an action against [B. SA] for the payment of 20,317 CHF 50. The Civil Court of the Vaud Cantonal Tribunal granted the claim. [B. SA] appealed for reform to the Federal Tribunal, primarily concluding for the rejection of the claim.

Considerations

The Federal Tribunal dismissed the appeal and confirmed the contested judgment. It considered that the three-month limit set by Art. 334 para. 2 CO for the probationary period also applies to fixed-term employment contracts, and not only to contracts of indefinite duration. This interpretation is in line with the systematics of the law and the intention of the legislator, which aimed to avoid abuses in the extension of the probationary period.

The Federal Tribunal also rejected the defendant's argument that the exception of abuse of…