Employment contract and probationary period

On the other hand, for employers, a contract is often just an administrative necessity, especially today, when the market is hungry for skilled people. Yet the employment contract is crucial. Of course, as with any other contract, this will only become apparent in the event of a dispute.

TheLabour Code requires an employment contract to be in writing and must contain only the following elements: type of work, place of work and date of employment. Somewhat surprisingly, the employee’s salary, for example, does not have to be a mandatory component.

Thetype of work should be negotiated in such a way that no future disputes arise as to what work the employer can assign to the employee and what is no longer in the employee’s “job description”.

It may be more profitable for an employer to employ a person as a labourer, even if he is realistically doing the work of a highly specialised foreman. In the event of disputes, it can then “punish” him by reassigning him to menial work.

The legislation therefore allows the agreed type of work to be defined narrowly or, conversely, more broadly. Similarly, it is possible for the type of work to be agreed by specifying more than one type of work in the employment contract, etc. However, if too many types of work are specified in the contract, doubts as to whether the law is being circumvented cannot be ruled out.

The place of work can be agreed to a specific address, but it can also be very broad, for example, the whole region or the whole country. This is particularly important for an employer who has, for example, several branches, who can then move employees freely in the case of a broadly agreed place of work. Therefore, when signing the contract, the employee should ask why the place is agreed so broadly so that he or she is not surprised.

For example, a security guard had an agreed place of work on a particular street in the city. However, there were rioters and loiterers gathered around the building, so the employer told him to go around the building every two hours. The security guard refused to do so because he had no other streets agreed upon as his place of work. Eventually, however, an agreement was reached and, for a slightly increased remuneration, the watchman agreed to change the place of work so that the walls of the historic building were guarded on all sides.

There is also a well-known case where a female employee, a single mother of a child under the age of 15, worked in one of the employer’s establishments located in Prostejov. In her employment contract, her place of work was agreed upon as ‘the company’s premises in the Czech Republic’. However, the employer closed the Prostejov branch and newly designated that the employee would work in the branch in Pilsen. However, the employee did not start work at the new location, as a result of which the employer immediately terminated her employment for a particularly serious breach of work obligations. The courts, including the Constitutional Court, found in favour of the employer. Although, in the opinion of Judge Jan Musil, this case is an abuse of the employee’s weaker position in negotiating the employment relationship, which should be prevented by the protective function of labour law.

Other matters and details of the employment relationship may be negotiated in an agreement other than the employment contract or given by an internal regulation of the employer. The wage is probably of most interest to each employee; it must be agreed or determined before the work begins, but it does not have to be directly in the employment contract. Often it is the various internal regulations of the employer that are referred to in the employment contract.

It is advisable to pay particular attention to the travel and benefits arrangements and to the competition clause. This essentially restricts the employee from engaging in gainful employment that competes with the employer for a maximum of one year after termination of employment. However, the employer must provide monetary compensation for this, at least half of the employee’s average monthly earnings. The competition clause may also include a reasonable contractual penalty; payment of the penalty by the employee terminates his obligation not to engage in similar activities. This clause serves to protect the employer’s know-how.

It is then often dealt with to cancel the non-compete clause. In principle, the employer can only cancel the clause itself during the employment relationship and only if it has previously defined the reasons for cancellation with the employee. The employee may terminate the non-compete clause if the employer fails to pay the agreed remuneration on time.

Probationary period

There is a common question related to the employment contract. Has a probationary period been agreed in the employment contract? What does working on probation entail? What are its rules and requirements?

During the probationary period, the employer and the employee get to know each other. The employer finds out if he is really interested in the employee and the employee finds out if he has chosen the right job. Both can terminate the employment relationship without giving a reason. However, they should do it correctly. Recently, there has been a proliferation of cases where employees in particular have behaved rather disloyally. For example, an employee leaves for lunch one day and never returns to work. Theoretically, this could result in a claim for damages, even if the employee is on probation.

However, let us return to the regulation of the probationary period itself. According to the Labour Code, the probationary period for ordinary positions can be a maximum of three months, while for managerial positions it can be up to six months. An employee does not have to be a direct “globe director” to be subject to the extended six-month probationary period. It is sufficient that he or she has the right to manage and task at least one subordinate employee. However, the probationary period must always be agreed in writing; a verbal agreement is not sufficient. It is usually included directly in the employment contract.

At the same time, the length of the probationary period must not exceed half of the agreed employment relationship – this should only be observed for fixed-term contracts. For example, if you sign an employment contract for four months, the probationary period can be agreed for a maximum of two months. However, this is a very marginal matter.

If the employee falls ill during the probationary period, the probationary period is extended by the time not worked. So, for example, an employee starts work on 1 January and a three-month probationary period is agreed in writing. In February, the employee falls ill for a month. This will cause his probationary period to end on 30 April, not 31 March.

In the event of sickness, the employer may not terminate the probationary employment during the first 14 calendar days of illness.

With regard to leave, first of all, as stated above, the probationary period is for mutual understanding between the employee and the employer. It is therefore not very common for an employee to take leave during the first three months in the workplace. However, the Labour Code does not restrict such use and does not lay down any rules other than those applicable outside the probationary period. However, the probationary period is extended by the leave. Simply put, the entitlement to leave only arises after a certain period of service.

It is therefore entirely up to the employer whether or not to allow the employee to take leave during the probationary period. For example, we have dealt with a situation where a fresh female petanque player was starting work and needed to go to the World Championships in Turkey the very next week. The employer eventually agreed, although if the employee has not yet worked enough days to warrant the amount of leave he or she requests, it is rather unlikely that the employer will comply.