Probationary period consists of a group of labour law provisions and is regulated as such in the Employment Relationships Act (hereinafter referred to as the “ZDR-1”).[1] At the same time, the field of probationary period can also be regulated in collective agreements, both the collective agreement concluded at the level of each individual activity and the so-called corporate collective agreement. The record of collective agreements concluded at the level of each individual activity is published by the competent ministry. The field of employment relationships of civil servants (and thus also the probationary period) is also systematically regulated in the Civil Servants Act.
The purpose of the probationary period is to enable the employee to determine, at the beginning of the employment relationship, whether their work, working conditions etc. suit them. On the other hand, another purpose of the probationary period is to check whether the employee meets the expectations of the employer, which the latter reasonably forms according to the requirements applicable at the workplace for which the employee has concluded an employment contract, or whether the employee’s work complies with the justified standards set by the employer.
The agreement between the employer and the employee on the probationary period must be expressed in writing in the employment contract and may last for no longer than six months. If the probationary period is set out in the fixed-term employment contract, the duration of the probationary period shall be determined in proportion to the duration of said contract and the nature of the work in question. If a new consecutive fixed-term employment contract is concluded for the same job, it must no longer include a probationary period. The probationary period may be extended in the event of temporary absence from work.
During the probationary period, the employee may regularly terminate the employment contract. If the employer determines during the probationary period or at the end of it that the employee did not successfully complete the probationary period, they may regularly terminate the employment contract with the employee. In the case of termination of the employment contract during the probationary period by the employee or employer due to the unsuccessful completion of the probationary work, the notice period is 7 days. The employee and the employer can agree on an appropriate payment for a shortened or given-up notice period.
During the probationary period the employer may terminate the worker’s employment contract even if there are grounds for extraordinary termination or due to the procedure for liquidation of the employer or due to a forced settlement. In the event that the employment contract is terminated due to an unsuccessful probationary period, the employee is entitled to severance pay determined in the event that the employment contract is regularly terminated for business reasons.
In the field of probationary work, a wealth of jurisprudence has already been developed; the Supreme Court of the Republic of Slovenia, for example, has decided that the employee must be informed in advance of the employer’s requirements and expectations which, however, does not necessarily mean that the employee must be issued written instructions for their work, with predetermined deadlines in which said work must be fulfilled. Oral knowledge of the employer’s expectations is sufficient. Article 125 of the ZDR-1, which regulates the probationary period, does not specify that the employer should set out written criteria in a special internal act or in the employment contract for the assessment of the probationary period.[2]
The Supreme Court of the Republic of Slovenia also pointed out that, if the termination of the employment contract is justified due to unsuccessful probationary period, the employer must provide the employee with the (agreed) notice period.[3]
In another case, the Court decided that, if the probationary period is unlawfully extended, the termination of the employment contract due to unsuccessful probationary period is also tendered too late, sincethe employer may only regularly terminate the employment contract of an employee in accordance with the fourth paragraph of Article 125 of the ZDR-1 during the duration or at the end of the probationary period (for which it finds that the employee did not successfully complete it), but not much later.[4]
In a third case, the Court confirmed that the provisions concerning the probationary period are primarily intended for the employer to verify whether the practical work of the employee meets the employer’s expectations; however, this does not mean that the employer is not obliged to prove the findings on the basis of which they opted for a negative assessment of the probationary period. It is not enough for the employer to prove that the performance of the probationary period has been assessed as negative, since the employer must also prove the reality of the facts on which such an assessment is based.[5]
In addition, in one of the cases where the employer stated in their termination notice that the termination was tendered due to an unsuccessfully performed probationary period, that the employee concluded an employment contract under this condition, that the employee was monitored during the probationary period by a committee of named members, and that the employee did not meet the expectations in terms of the provisions of the employment contract, the Supreme Court of the Republic of Slovenia found that the employer acted correctly. The Court agreed with the assessment that the termination of an employment contract with such content meets the requirements for the justification of the actual reason for the termination due to the unsuccessful probationary period within the meaning of the second paragraph of Article 87 of the ZDR-1 and, from the perspective of the latter, enables the examination of its legality before the court. In the present case, after the employee started working as a security guard, they were adequately informed about their work duties; after the start of work, they were accompanied by two members of the committee in charge of the assessment of the probationary period, as agreed in the employment contract; the contracting entity that ordered the security services at the facilities where work was being performed by the employee had justified comments on the plaintiff’s work; the members of the committee and the colleague who was in charge of the employee’s onboarding warned them of their mistakes and of their inadequate work, yet the plaintiff showed no interest in adapting their work attitude to the requirements of the workplace, which is why their employment contract was reasonably terminated due to their failure to successfully pass the probationary period.[6]
[1]Official Gazette of the Republic of Slovenia, No. 21/13, 78/13 – amended, 47/15 – ZZSDT, 33/16 – PZ-F, 52/16, 15/17 – dec. of the Constitutional Court, 22/19 – ZPosS, 81/19, 203/20 – ZIUPOPDVE, 119/21 – ZČmIS-A, 202/21 – dec. of the Constitutional Court, 15/22, 54/22 – ZUPŠ-1, 114/23 and 136/23 – ZIUZDS
[2]Judgement of the Supreme Court of the Republic of Slovenia, VIII Ips 248/2017
[3]Judgement of the Supreme Court of the Republic of Slovenia, VIII Ips 220/2015
[4]Judgement of the Supreme Court of the Republic of Slovenia, VII Ips 222/2016
[5]Judgement of the Supreme Court of the Republic of Slovenia, VIII Ips 62/2017
[6]Judgement of the Supreme Court of the Republic of Slovenia, VII Ips 85/2016