Facts
The case concerns the calculation of the probationary period pursuant to Art. 335b CO. The appellant took up his position on July 15, 2015. In the absence of a deviating contractual agreement, the probationary period was one month. Due to an illness, the probationary period was extended by one day, so that it lasted until August 16, 2015. The termination was effective on August 16, 2015, thus still within the probationary period.
The issue was whether the day of taking up the position should be included in the calculation of the probationary period or not. The Federal Supreme Court decided that the day of taking up the position pursuant to Art. 77 para. 1 no. 3 CO is not to be included, as this day was not fully available. Thus, the probationary period generally ended on August 15, 2015 and was extended due to the illness until August 16, 2015.
Considerations
The Federal Supreme Court stated that according to the basic principle of the law of time limits, which goes back to Roman law, the calculation of time limits is done by calendar days. Only days that are fully available are counted. Since the employment contract was concluded on the day of taking up the position, this day was not fully available and is therefore not to…