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Rights during the probationary period: Unexcused absence does not justify termination without notice


It would have been her third day at work, but the paralegal did not come to the office and did not call in sick. She was terminated without notice. Wrongly, a state labor court decided.

Photo: Patrick Pleul / dpa

Anyone who is absent without excuse on the third working day must therefore not be given notice without notice.

In such a case, a warning cannot be waived during the probationary period.

That was decided by the Schleswig-Holstein State Labor Court in Kiel, the judgment was published this Thursday (file number 1 Sa 72/20).

In the specific case, a lawyer and notary assistant who had started in a law firm on August 1, 2019, sued.

She had agreed with her boss to take two days off after the first two working days to get her son used to kindergarten.

But when she was absent without excuse the following day, the woman's employer fired the woman without notice.

The reason: There is a "failed employment relationship", a warning is unnecessary.

On the other hand, the specialist sued and demanded payment of her wages by August 20, 2019 - in her opinion, that would have been the deadline for a timely termination within the probationary period.

A notice period of two weeks is required by law during the probationary period.

However, only a one-week notice period was agreed in the woman's employment contract.

The state labor court found the woman right on both points: Just because she had only started her job a few days does not mean that in the event of a breach of duty, a warning is unnecessary and can instead be terminated immediately.

The termination without notice was declared ineffective - as was the shortened notice period agreed in the employment contract.

The judges did not accept the argument of the defendant attorney that the parties to the collective bargaining agreement may agree a shorter notice period during the probationary period.

Even if this is allowed to the parties to the collective bargaining agreement, there is no violation of the principle of equality.

Because the negotiating parity of the collective bargaining parties would lead to an appropriate consideration of the interests of employers and employees.

In contrast, there is no comparable parity between the parties to an individual employment contract.

A two-week notice period during the trial period is therefore justified.

Icon: The mirror

vet / jur

Source: spiegel

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