The probationary period is primarily used to ensure that both the employer and the employee are satisfied with the cooperation in the months and years to come. For this reason, the Labour Code allows both parties to terminate the employment relationship prematurely during the probationary period if they find at the outset that concluding an employment contract was not the best decision. But in which case can the employee defend himself against termination during the probationary period?
Theprobationary period will most often be set out directly in the employment contract. However, it can also be agreed after the contract has been concluded, but no later than the day you start your new job. The probationary period must always be agreed in writing, a verbal agreement is not sufficient. Once agreed, the probationary period cannot be extended (however, by law it is extended for work-related obstacles, typically illness of the employee).
A probationary period cannot be agreed when changing jobs with the same employer. In this case, it is expected that both parties already know what they can expect from each other. Also, a probationary period can only be negotiated for an employment relationship, so it is not possible for an employment or performance agreement.
Tip: Read more about how the trial period works in our article.
TheLabour Code stipulates that the probationary period may not exceed three months from the date of employment. For managers, the probationary period may be up to six months. The probationary period is generally calculated in whole months, regardless of whether the month has 28, 29, 30 or 31 days. Only if the employment relationship does not start on the first day of a month but on another day, we will count the probationary period from the following day.
So how does it work in practice? Ms Kamila joined her employer on 15 January 2022 and has an agreed probationary period of three months. Her probationary period starts on 15 January and ends on 14 April 2022.
If the employer or the employee concludes that the agreed employment relationship is not to their satisfaction, they can terminate the employment relationship very easily during the probationary period. Termination during the probationary period is possible for any reason or for no reason at all. In this case, the termination of the employment relationship is often referred to as termination of probation.
There is no limit to the amount of time an employee can be terminated during the probationary period. The Labour Code provides only one limitation for termination during the probationary period by the employer , namely during the first 14 calendar days of incapacity for work. If the employee was dismissed in order to avoid the obligation to pay him or her wage compensation, the dismissal would be invalid. As long as the employee is not incapacitated, the employer can terminate the employment relationship at any time and for any reason. In addition to incapacity for work, a pregnant woman cannot be dismissed because she became pregnant during her probationary period (or the employer discovered that she was pregnant). This would constitute discrimination. But he can dismiss her for other reasons, such as poor work ethic.
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Notice of termination during the probationary period must be in writing and signed. It must be clear who is giving it and to whom it is addressed. If you do not comply with the written form, the notice will not be taken into account and the employment relationship will continue. The employment relationship will end on the date the notice of termination is served during the probationary period, unless a later date is specified. This may result in the employment relationship being terminated from one day to the next.
Even during the probationary period, it is possible to conclude an agreement to terminate the employment relationship (so-called termination by agreement). The termination of the employment relationship will then take place on an agreed date, which may occur after the end of the probationary period.
Did you get fired during your probationary period?
If you are dismissed from your job, we will help you defend yourself against your employer’s actions and make sure you get everything you are entitled to from them. This includes, for example, any wages or severance pay you are owed. We provide assistance throughout the country and at a predetermined price.
Given the broad possibility of terminating employment during the probationary period, it will not be common for such a termination to be invalid. However, this is also possible if the notice does not comply with the formal requirements or if it is delivered after the end of the probationary period. A notice given by the employer in the first 14 days of the employee’s incapacity for work will also be invalid.
If the employer has invalidly terminated the employment relationship during the probationary period, the employee must give written notice that he or she insists on continuing employment. In this case, the employer must compensate the employee for the wages, even if the employee did not perform any work.
If the employer does not accept the employee’s objection that the termination is invalid, the employee will have to go to court. The action must be brought within two months of the date on which the employment relationship should have ended. This deadline cannot be waived.
If the probationary employment relationship was terminated invalidly and the employee did not notify the employer that he/she insists on continuing the employment, then he/she is entitled to wage compensation only for the period of notice, i.e. two months. It should be borne in mind that even in the case of invalid notice, it is always up to the employee to assert his rights. Otherwise, the employee will be deemed to have accepted the notice and the employment relationship will end.
Tip: Want to sue for wrongful termination and not sure if you will win? We will assess your chances of success in court and suggest a solution that will lead to the desired outcome.
We do not recommend the use of model termination notices and agreements. The model notice available for free download may not meet your needs and, in particular, may not be in line with the current wording of the law. Such a notice may be invalid, which may involve a number of complications and, above all, liability to the other party.
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When you quit your job, we can help you defend yourself against your employer’s actions and make sure you get everything you’re entitled to from them. This includes, for example, any wages or severance pay you are owed. We provide assistance throughout the country and at a predetermined price.
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