This month, the Court of Appeal ‘s-Hertogenbosch ruled that a valid probationary clause had been agreed between employer and employee, and that the employer had validly terminated the employment contract in time, within that probationary period.
Facts
On 19 December 2019, the employee received the employment contract and work schedule from the employer, effective 2 January 2020. The contract stated it was entered into for a period of six months and one day. The first month counted as the probationary period, running until and including 2 February 2020.
On 30 December 2019, the employee told the employer he would be renting a house, meaning he could only start a day later, on 3 January 2020. The employer responded positively, and the employee indeed began working for the employer from 3 January.
On 31 January 2020, the employer informed the employee by email that he was being dismissed, and that this counted as a probationary dismissal. The payslip stated that the employee had joined the employer on 2 January 2020.
Probationary clause
Under the law, a probationary period of a maximum of one month can be agreed where the employment contract runs for longer than six months but less than two years. The question was whether the arrangement of 30 December 2019 – starting work one day later – meant the contract’s duration had effectively become six months, rendering the probationary clause void.
Ruling
The Court of Appeal established that, on 19 December 2019, the parties intended to enter into an employment contract for a period of six months and one day. This is also stated literally in the contract. The parties deliberately chose such a period specifically to be able to agree a probationary period. The moment work actually begins must be distinguished from the contract’s start date. The latter was not changed by the (practical arrangement resulting from the) agreement of 30 December 2019. The employment contract’s start date therefore remained 2 January 2020, and its duration remained six months and one day.
Even if the employee only actually started work on 3 January 2020, and even if this had been agreed, that alone does not mean the parties intended to change, or actually changed, the original duration of the employment contract.
The Court of Appeal ruled that the probationary clause was valid, and therefore so was the probationary dismissal given.
For the full ruling, click here (in Dutch).
Questions about the above? Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
