If a manager with responsibility for personnel matters, assures an employee near the end of their probation period that they will be retained, but soon terminates employment without valid reason, this inconsistency violates good faith and renders the termination void under Section 242 of the German Civil Code.
Facts of the case
The parties are in dispute over the validity of a termination during the probationary period. The claimant entered into an employment relationship with the defendant on 15 June 2023 as a commercial lawyer in the Legal/Compliance department, subject to a six‑month probationary period and a two‑week notice period. Shortly before the expiry of both the probationary period and the waiting period under section 1(1) of the Protection Against Dismissal Act (Kündigungsschutzgesetz – KSchG), the competent head of department—who was also a holder of a commercial power of attorney (Prokurist) and the manager responsible for personnel matters—stated to the claimant during a regular meeting (Jour Fixe) on 17 November 2023 that they would “of course” keep him on.
In the following month, on 4 December 2023, the defendant consulted the works council regarding an intended termination of the claimant during the probationary period. One of the reasons given for the termination was that the claimant failed to meet performance expectations. After the works council had given its consent, the defendant issued a letter dated 8 December 2023, signed “ppa.” by the head of...
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