The Supreme Court reiterates the importance of agreeing in detail on the aspects relating to the probationary period in employment contracts
Published on 31st May 2023
The Supreme Court considers the termination of a contract for failure to pass the probationary period to be unfair dismissal, because the clause in the contract that regulated it did not specify its exact duration, but merely referred to the provisions of the Collective Bargaining Agreement
The Social Chamber of the Supreme Court, in its ruling of 12 April 2023, once again emphasises the importance of correctly agreeing the probationary period in employment contracts.
According to the High Court, fixing the length of the trial period is a minimum right of employees, and its lack of clear and specific specification in the employment contract generates legal uncertainty.
The judgment in question stresses the importance of clarity and transparency in working conditions from the beginning of the employment relationship.
The specific case
The judgment refers to a case in which an employee, with a one-year temporary contract, was dismissed for not having passed the probationary period.
The employee challenged this decision, arguing that the probationary period was invalid because its duration was not specified.
According to the contract, the probationary period would be subject to the provisions of the applicable collective bargaining agreement. However, such agreement did not stipulate a precise duration, but set a maximum duration limit of 6 months. Therefore, it could not automatically be assumed that the agreed probationary period would coincide with that limit.
Importance of a written probationary period
The Supreme Court has upheld the right of employees to fix in writing the specific duration of the probationary period. It has highlighted the importance of this right, since during this period, both the employer and the employee have the power to terminate the contract without the right to legal compensation, a consequence which is particularly disadvantageous to the employee.
Consequently, the mere reference to the collective bargaining agreement or to article 14 of the Workers' Statute is insufficient, since they only establish a maximum limit for the duration of the probationary period, without specifying a specific time limit. This situation creates uncertainty for the employee, who does not know the precise time at which the probationary period ends.
However, a different situation arises if the applicable collective bargaining agreement stipulates a specific duration for the probationary period. In such a case, the probationary period would be valid as long as reference is made to the duration stipulated in the mentioned agreement.
Therefore, the High Court has concluded that as the probationary period is not valid, the termination of the employment relationship is considered an unfair dismissal. As a result, the employee is entitled to receive a legal compensation of 33 days per year worked, or the possibility of reinstatement in his job.
