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Extension of the period of notice in the probation period

Extension of the period of notice in the probation period

Reference to collective bargaining agreements is widespread practice. Caution is advised, however, if contradictions to the contents of additional provisions of the employment contract appear.

The Case

In his employment contract, the employer made reference to the provisions of the collective bargaining agreement. Accordingly, the first six months of the employment relationship are considered a probation period. In the first three months of the probation period, the employment relationship can be terminated with one week’s notice, afterwards within the statutory periods of notice pursuant to sec. 622 para. 3 Civil Code (German BGB). The employment contract included a provision under the heading of “Termination of the employment relationship” that termination of the employment relationship was subject to a notice period of 6 months to the end of the month. The employer terminated the employment relationship in the probation period on short notice of two weeks. The employee, however, successfully invoked the longer regular termination period of 6 months provided by the employment contract.

The Decision

According to the Federal Labor Court, the “non-legal amateur sphere” is decisive. From the employee’s perspective, the employment contract only contains a provision on regular termination periods. The employer did not make it unmistakably clear in the employment contract that this longer termination period is only intended to apply to the end of the probation period. As a consequence, the employee is basically allowed to assume that the provision in the standard employment contract should take precedence over the collective bargaining agreement referenced. Especially because there is no indication at all that the longer termination period should only apply upon expiry of the probation period or that the collective bargaining agreement with the short statutory termination period of 14 days should have precedence for the probation period. And even if one found these provisions in the employment contract concerning the length of the termination period during the probation period to be nontransparent, this would indeed basically lead to the invalidity of these clauses and thus to the application of the short statutory termination period. However, in this case the employer deviated from the statutory rule to his disadvantage. Furthermore, he does not need to be protected from nontransparent provisions he used himself by applying the statutory rule for termination in the probation period that is more advantageous to him.

Recommendation for practice

It has always been a very popular practice to include in employment contracts a reference to the collective bargaining agreements as amended. However, caution is advised in additional structuring of the employment contract. Because any such contradictions do not lead to invalidity, but rather to the more advantageous rule applying in the employee’s favor. Therefore, employment contracts should be phrased carefully, clearly and transparently.

By dr. Klaus Neumann

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