Work contract of employment with probation
Work contract of employment with probation
For some specifics in the work of the employment contract with probation
Constantly displayed by the labor market and meeting its continuous development trend towards flexibility in settling labor relations between employer and employee is reflected in the growing importance of some legal specifics offering multidimensional solutions for the parties to the employment contract. One of the more common lately possibilities is to conclude an employment contract with a clause for testing according to Art. 70, para. 1 of the Labour Code (LC), whose main modalities - clause probation - concerns the right of the parties to the expiry of a specific and legally limited period of time to evaluate how the agreement at this stage agreement meets their previously set objectives and according to their assessment to take appropriate action.
The employment contract for a trial period is legally regulated in our labor legislation in which it is assumed that when the work required to assess the suitability of the employee to perform, final acceptance of the work can be preceded by a contract for a trial period to 6 months. Supreme Court over the years has held a number of decisions in question. Part of the established case law will be the subject of research in the following lines.
Supreme magistrates in Decision № 118 of 06.04.2015, on the town. E. № 6968/2014, the state that in practice the SCC clarified that the contract for a trial period has its own labor agreement. The contract for a trial period is concluded when the work required to assess the suitability of a worker to perform or when he wants to check whether the job is suitable for him - art. 70, para. 1 CT. In art. 70, para. 5 KT is set only once and exclusivity of the contract - only once for the same work in an undertaking not to hold parties / and mainly worker / in a contractual relationship that is interlocutory and therefore - uncertain and terminates relief / no motives notice protection under Art. 333 of the Labour Code due benefits / of the country in whose favor the agreed deadline. Contract for a trial period can not be concluded for work / job function / worker has already performed at the employer's final agreement. Probationary period may be agreed as a contract of indefinite duration and in all types of fixed-term contracts. The type of employment contract is irrelevant to the validity of the clause for testing.
On the substantive question of the possibility to arrange clause probationary period with an additional agreement to an existing employment relationship if the new position requires less qualified, compared to the former position, and when the first worker was moved to another position without probationary period for new job, Supreme Court Decision № 160 of 05.08.2015, on the town. e. № 4811/2014, the following shall be adopted. In art. 70 CT legislature has expressly allowed the opportunity to arrange clause probationary period, including existing employment relationship between the parties if substantially changed work function of the employee - arg. Art. 70, para. 5 CT. Testing the worker is in order to enable him to cope with the changed employment liabilities, respectively, to determine whether the new position is suitable for him. This possibility depends entirely on the discretion of the employer and / or employee; they are not obliged to make use of it. The qualities of the employee, his qualifications are checked with a view to his suitability to perform the new job functions and thus is irrelevant whether the previous work was required higher skills and education. There is no restriction or legal prohibition on the application of Art. 70, para. 1 CT when the conditions thereof, is irrelevant whether other cases of change in the position of the worker, the employer or the employee negotiated and probationary period. The prohibition of art. 70, para. 5 KT - the conclusion of more than one contract for a trial period only for the same job, regardless of the job title. No to the hypothesis of Art. 70, para. 1 CT in cases of existing labor pravotonoshenie where the employer has checked the suitability of the employee and the latter is also aware of the ability to do the job - eg. previously performed work functions constituting the actual content of the new office.
In conclusion, I would point out that stipulation testing can be done, as in a contract of employment for an indefinite time and at the conclusion of the fixed-term contract. In the latter case, however, this must be explicitly stated. Therefore, in the absence of an explicit stipulation of the contract concluded for a trial period based on basic employment relationship, which is time-sensitive, the employer can not justify the allegation of expiry of the contract as grounds for termination of employment.
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Attorney at law Iuila Danova
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