Termination during the probation period

Berlin-Brandenburg Regional Labour Court; decision of 2 July 2024 . 19 Sa 1150/23

The Regional Court’s decision deals with the question of the validity of a probationary period agreement in the context of a fixed-term employment relationship and its compatibility with the Protection against Dismissal Act (KSchG) and the Part-Time and Fixed-Term Employment Act (TzBfG).

The Case:

The plaintiff had a fixed-term employment contract for one year, which provided for a four-month probationary period. During this probationary period, the defendant terminated the employment relationship with two weeks’ notice. The plaintiff claimed that the four-month probationary period was unreasonably long in relation to the one-year fixed-term contract and was therefore invalid under Section 15 (3) TzBfG.

Decision of the labour court:

The probationary period agreement was declared invalid as it was not proportionate to the duration of the fixed term. A probationary period of a maximum of 25% of the contract duration was deemed appropriate; in this case, it was one third. However, the termination was not completely invalid. Instead of the short notice period during the probationary period (two weeks), the general notice period of Section 622 (1) BGB (four weeks to the end of the month) applied, meaning that the employment relationship continued until 15 January 2023.

Arguments of the parties:

Plaintiff: The probationary period is contrary to European law and violates Section 15 (3) TzBfG. In addition, the waiting period under the Dismissal Protection Act should be shortened, as it effectively has the same effect as a probationary period.
Defendant: The probationary period was proportionate as a comprehensive familiarisation period was required. Furthermore, the period of notice during the probationary period was covered by the law.

Appeal:

Both parties lodged an appeal. The plaintiff sought to have the dismissal declared completely invalid, while the defendant defended the validity of the probationary period agreement.

The Regional Labour Court dismissed both appeals. The probationary period remained invalid, the extended notice period was confirmed.