Good morning,

I hope you are all well.

I moved to Switzerland on November as I had an offer for work.

I signed a 2year contract with a probation period of 3 months. One day before my probation period ends, the director called me to his office in order to sign an extension of my probation period for another 3 months due to communication problems with one of the senior managers. I did and I promised that I will try my best to change it.

However I was talking to a friend and he told me that as per the law, the maximum probation period is 3 months and it cannot be extended.

Is it right? If it cannot be extended, that means the addendum to the contract is not valid, right? Does that means that if a termination will come during those 3 months I will have a notice period of 3 months like it is written in my contract or 7 days as in probation period?

Thank you.

It can be extended, that is possible and legal

Edit: this is possible in Germany, apparently not in Switzerland

I understand but what about the below.....

OR Art. 335b: (During the probation period)
During the probation period, the employment relationship may be terminated at any
time with a notice period of seven days; the first month of the employment relationship
is deemed to be the probation period.
Deviating provisions may be agreed upon by written agreement, standard employment
contract or collective employment contract; however, the probation period may
be extended only to a maximum of three months.
In the case that a probation period is interrupted due to illness, accident, or the
performance of a legal duty which is not voluntarily assumed, the probation period
shall be prolonged correspondingly.

Considering that the alternative was that they give you 7 days notice to clear your desk, which would you have preferred?

Dear Snoopy,

Thank you for your reply.

Fortunately, they did not ask me to clear my desk....My question though has nothing to do with this....

If it's true that as per the law the probation period cannot be extended more than 3 months....and as per my contract the 3 months period has been passed....Does that mean that if a termination will come from now on, I will have a notice period of 3 months like it is written in my contract or 7 days as in probation period?

What did your HR say to that?

According to this link, probationary periods in employment contracts are to be agreed at the beginning of the contract and cannot be changed while the contract is running, even with so-called mutual agreement between employer and employee. As needed, please translate the following with a software translator or ask a friend to translate:

"Guten Tag Herr Bättig
Bei einem Quali-Gespräch fordert der Arbeitgeber (wegen nicht-erreichen der Ziele), dass wieder eine Probezeit (3 Monate, Kündigungsfrist 7 Tage) gilt. Bei Ende der nochmaligen Probezeit soll nochmals ein Gespräch geführt werden, und über die Weiterführung des Arbeitsverhältnisses befunden werden.
Ist eine wiederholte Einführung einer Probezeit zulässig (gleiches Arbeitsgebiet wie vorher)?

Guten Abend

Nein, das Ansetzen einer weiteren Probezeit bei laufendem Vertrag ist definitiv nicht zulässig. Die Probezeit kann nur zu Beginn des Arbeitsverhältnisses vereinbart werden.
Freundliche Grüsse
Peter Bättig"

"Guten Tag
Wir haben nach gegenseitigen einvernehmen die Probe zeit um weitere 3 Monate verlängert.
Ist dann dieser Vertrag nichtig, auch wenn beide Seiten einverstanden Waren?

Guten Tag Frau B.

Besten Dank für Ihre Anfrage. Der Arbeitsvertrag selber ist nicht nichtig, allerdings ist diese Vereinbarung der Probezeitverlängerung ungültig. Das heisst konkret: Nach den abgelaufenen 3 Monaten Probezeit befindet sich der Arbeitnehmer nicht mehr in der Probezeit, sondern es gelten die regulären Kündigungsfristen/-gründe. Ob eine solche (nicht zulässige) Verlängerung in gegenseitigem Einverständnis passiert oder nicht, spielt da keine Rolle.
Freundliche Grüsse
Peter Bättig"

https://www.fachbibliothek.ch/probezeit-arbeitsvertrag-arbeitsrecht/

There is no HR in the company....

Thank you so much Mullhollander.
That was really helpful.

Do you know if there is any law article that I can use in case that the unfortunate moment of dismissal will Come?

That won´t help you much unfortunately. If they let you go with the proper notification, nothing can be done.

I understand but you know....if they have in mind that I am in probation period then 7 days notice is required....not 3 months as per my contract.....so for me those 3 months are important.....

That's my concern....

This reads as if you signed a new contract. Is that the case?

I did not sign a new contract. It was a memo that my probation period will be extended until April and I had to sign the acknowledgement.

This is the way I might handle it if I were in your shoes.

1. I would stay silent to my employer about the invalid second/ extended probationary period.
2. If the employer dismisses you claiming that you are in the second/ extended probationary period and offers to pay you seven days, contact a Swiss labor attorney to contest it.

Your employment contract appears to be what is called a maximum duration contract, rather than a true fixed-term contract. True fixed-term contracts would require payment until the end of the two years if you were dismissed following the end of the probationary period (or due to near-criminal activity by the employee causing termination).

If you need the name of a labor attorney, please send me a pm.

Please note I am not an attorney so the above is not legal advice.

Would not change a iota. A new contract for the same work just to extend the probation period beyond 3 months is not seen lightly by the court.
BGE 112 II 51 http://relevancy.bger.ch/php/clir/ht...=show_document

The one you already quoted.

BTW: I see it as Mullhollander. But also keep in mind that your Employer does not play according to the rules. Furthermore, be aware that the longer notice period, at least by law, also applies to you. If your employer realizes his mistake he may insist on the longer one. Just in case you find a better job and wish to leave ASAP.

Wish you all good luck and only the best for your future.

__________________
On Strike - ChatGPT knows more than I, so use it (or doesn't it?)

Thank you aSwissInTheUS.

I am not planning to find another job if it is not necessary. I like my job and it is a good start for my career. And also the relocation to Switzerland cost me A LOT!

I believe that it is a mind game to impose authority on me because I am confident.

Let's see....

Or you are not performing up to their expectations. Have a chat with your boss?

About my performance....are really happy....the conflict was with one of the senior managers who complained about my communication with him.

All the other senior managers have said really good things about me and they support me a lot.
And for your info, everyone has communication problems with the other one.....I am not the only one.

Unfortunately he has been appointed for my training process....

Still, have a talk with him and the others to see where you can improve. If they already extended your probation period, they are not that happy with you

If that is the case, are you sure you want to be working there?