Starting point of the notice period
The date to be taken into account for termination of the contract during the probationary period is the date on which the employer has expressed his will to rescind the contract, that is to say the day on which the registered letter is sent and not the date of its receipt by the employee, the postmark being conclusive.
According to the case law, “the form, procedure and consequences of termination are assessed on the date of the dismissal, that is to say the date on which the employer posted the registered letter giving notice of termination”.
Thus, during the probationary period, the period of notice starts on the day of notification (thus the dispatch) of the termination and not on the 1st or the 15th of the month as in the case of ordinary dismissal after the probationary period.
The period of notice is calculated in calendar days and not working days.
Nota Bene
The period of notice must end no later than the last day of the probation.
In no circumstances may it extend beyond the end of the probation, otherwise the contract may be reclassified as a definitive contract.
In fact, where the probationary contract is not terminated before the expiry of the probationary period agreed by the parties, the employment contract is regarded as having been concluded for the period agreed in the contract as from the day of entry into service.
In any such case, the employer will have no choice but to dismiss his employee in accordance with the ordinary dismissal procedure, that is to say with observance of a notice period of two months and entitlement of the employee to require disclosure of the reasons for his dismissal.
In those circumstances, the notice periods will commence, as far as the employee is concerned:
- on the 15th day of the calendar month during which the termination was notified, where the notification proceeds that day;
- on the 1st day of the calendar month following the one during which termination was notified, where the notification was made after the 14th day of the month.
If the dismissal nevertheless takes place with observance of the prescribed legal notice during the probationary period, it will be necessary to apply Article L.124-6 of the Labour Code, which provides that the party which terminates a contract of indeterminate duration without having serious reasons for doing so or without observing the notice periods that apply in the event of termination of a CDI, is required to pay the other party compensation in lieu of notice equal to the remuneration corresponding to the period of notice or, where applicable, to the part of that period remaining to run.
So far as concerns a fixed-term contract (CDD), which can no longer be terminated by giving notice, the victim of the termination may claim damages for unfair termination of the CDD before its expiry.
Examples
A CDI provides for a probationary period of 6 months from 15 January to 14 July. The notice period to be observed in the event of termination is 24 days. The contract must be terminated no later than 21 June (14 July – 24 days).
If the termination occurs after 21 June, the notice period will overstep the probationary period and the contract will then be deemed to be one of indeterminate duration. The notice periods relating to CDIs must then apply.
The specific case of termination within a probationary period in case of sickness
The Court of Appeal has made it clear that in such cases “the notice period is a period which must be calculated retroactively, that is to say back-calculated from a specified date, namely the expiry date of the contract”.
Formula to be applied > BACK CALCULATION: only day of notification of the dismissal = date of expiry of the agreed probationary period + extension – [X] days notice
If that day falls on a Saturday, a notification given on the Friday would be unfair in so far as the employee would still be protected against dismissal.
Examples :
- Judgment of 2 April 2015, No 39382 of the list
The employment contract signed as taking effect on Monday 6 June 2011 and providing for a probationary period of 6 months expiring on Thursday 5 January 2012 must be terminated on Tuesday 13 December 2011; - Judgment of 30 April 2015, No 40842 of the list
The employment contract signed as taking effect on Sunday 1 January 2012 provided for a probationary period of 6 months expiring on Saturday 30 July 2012 and for a period of notice of one month to be observed during the probationary period. The probationary period was extended by 16 days on account of sickness, until Monday 16 July 2012. The termination with notice during the probationary period was therefore required to take place no later than 16 June 2012. The dismissal, which took place on Friday 15 June 2012, was declared unfair on the ground that on that day the employee enjoyed protection against dismissal.