Suppose you have a new job and after signing the employment contract, your new employer asks if you want to start earlier. You agree and begin working earlier than the agreed start date. The question now is: when does your probationary period begin? Does the probationary period start from the agreed date in the employment contract or does the probationary period begin when you perform work for your new employer?
Case: dismissed during probationary period or not?
In the case discussed here, a probationary period of one month was agreed between employer and employee; it concerned a twelve-month contract. The employment contract would run from July 1, 2014 to May 31, 2015. On July 31, 2014, the employment contract was terminated by the employer. However, the employee claims that he has been employed since June 17, 2014, which would mean that the termination of the employment contract took place outside the probationary period. He would then have met his future colleagues and followed an interactive training course with regard to the company’s activities. This is supported by statements from two employees of the company in question. The employee has claimed his salary of 8,500 euros from August 1, 2014 to the date on which his employment contract would end by operation of law. The court rejected this claim.
The Court of Appeal ultimately rules in favor of the employee
On appeal, the Court of Appeal rules differently. It states that the purpose of the probationary period is to see whether parties are compatible in terms of quality and suitability. The probationary period therefore begins as soon as the employee actually starts performing work in execution of the agreed work. At this point, the employer can form an impression of the employee’s qualities. The employer claims in this case that the employee did not perform any substantive work on June 17 and later: it was merely about getting acquainted with the staff and the company’s product. The Court sees this differently, partly because wages were paid by the employer during that period, which is characteristic of the existence of an employment contract. According to the Court, it was part of the company that the employee got to know the employees, the product and the production processes in order to master the work. This was because the intention of the parties was to appoint the employee as Director Sales at the company. According to the Court, the activities from June 17 transcend the character of a brief general introduction. The employee was also paid in accordance with his employment contract.
Conclusion
The Court concludes that the probationary period started earlier than July 1, with the result that the employment contract was terminated outside the probationary period. This is unlawful. This creates a right to continued payment of wages for the period that the employment contract would have lasted if it had run normally. In this case, the employee is therefore entitled to almost 60,000 euros. This case shows that attention must always be paid to when an employee starts work earlier than agreed. The probationary period then starts earlier and also ends earlier than the date included in the employment contract. The consequence may be that the dismissal is not legally valid and the employee remains employed or – as in this case – with a temporary employment contract, wages for the remaining months must still be paid.
Always pay close attention to when your probationary period begins
Are you starting with a new employer soon? Always pay close attention to when you officially start working. Do you have questions about your probationary period? Call our experienced lawyer at 023-3034698 or WhatsApp us at 0681842957.
