Dismissal during trial period

When a trial period forms part of an employment contract, this is done to enable an assessment being made over a particular period of time of whether the newly recruited employee is as good a match for the position for which he or she has been hired as was originally envisaged. Either party has the right throughout the trial period to terminate the employment contract with immediate effect. The customary safeguarding of legal rights does not apply when an employment contract is terminated during the trial period. It follows from the generosity of the termination powers throughout the trial period that these powers may also be called upon for reasons that have no bearing on the purpose of the trial period.

Having brought proceedings against her former employer aimed at her receiving back wages, the employee in question argued that her employer had abused its powers to terminate the employment contract while her trial period was still under way. The employee had been hired as the manager of a day nursery, and had been dismissed as soon as her employer had received information to the effect that her life partner had been convicted for possession of child pornography. The employer had taken the view that the employee in the course of the job application proceedings should have made mention of the relationship she was in, as she should have appreciated the delicacy of the matter.

The Sub District Court ruled that the employer had neither abused the trial period proviso nor acted with negligence: it had discussed the information which had come to its attention with the employee, who had then admitted that she did indeed entertain a particular relationship with someone who had been criminally convicted, with the employer terminating the employment contract one day later. The Sub District Court duly dismissed the claim for back wages.