Most employment relationships begin with a probation period that many treat as a rights-free zone. The employer believes they may terminate at will without obligation, and the employee believes they are entitled to nothing if their service ends during it. Both assumptions are inaccurate. Labour Law No. 6 of 2010 regulates probation with defined controls protecting both sides, fixing a maximum duration and preventing circumvention by repetition. This article answers the practical questions most frequently raised about this stage.
The Concept and Its Requirements
Probation is a period of mutual assessment subject to formal requirements that cannot be disregarded:
- Purpose: enabling the employer to assess the employee's competence and the employee to assess the working conditions. It is a mutual protection rather than a privilege for one side.
- Must be stipulated: probation is not presumed and must be stated expressly in a written employment contract. Where the contract is silent, the employee is treated as confirmed from the first day and the ordinary termination rules apply.
- Maximum duration: probation may not exceed one hundred working days, a mandatory ceiling that cannot be exceeded by agreement.
- Calculating the period: what counts is actual working days, so holidays and leave are excluded as the law provides, a point that generates practical disagreement.
- No repetition: an employee may not be placed on probation more than once with the same employer, even if the job title changes or service was interrupted and then resumed.
- No extension: probation may not be extended after it expires on the ground that assessment is incomplete.
Termination During Probation
Here lies the most frequently asked question:
- Right to terminate: either party may terminate during probation without observing a notice period, and this is the essential feature of the stage.
- No reason required: the employer need not state a reason for terminating during probation, though termination for an unlawful reason such as discrimination or retaliation for a complaint may open the door to accountability.
- In writing: termination should be in writing and dated, as disputes over the date of termination and whether it fell within or after the period are among the most common.
- Termination after the period: where the employee continues working for a single day after probation expires, they are treated as confirmed and the ordinary termination rules apply, including notice and compensation for arbitrary dismissal.
- Termination by the employee: an employee may leave during probation without notice and is not liable in damages absent a valid special agreement.
Entitlements on Termination During Probation
This is the financial aspect both sides usually overlook:
- Wages: the employee is entitled to full pay for days actually worked and may not be deprived of it on the ground of failing probation.
- Leave pay: entitled to payment for leave accrued over the period worked on a pro rata basis.
- End-of-service gratuity: tied to the statutory service conditions, which a probation period alone usually does not meet, though it counts towards service if the employee continues.
- Return ticket: where the employee was recruited from abroad and the employer terminates, the employer is in principle liable for the return ticket, a point frequently overlooked.
- No deductions: an employer may not deduct recruitment or training costs from the employee's entitlements save within the limits the law and a valid agreement permit.
- Counting towards service: where the employee passes probation, the period counts towards service from the first day for gratuity and seniority purposes.
Frequently Asked Questions
- May a second probation apply on changing roles internally? No. The prohibition attaches to the employer rather than the job title.
- Does probation apply to fixed-term contracts? Yes, subject to the same controls and ceiling.
- What if the contract does not state a duration? A bare reference to probation without a period is construed in the employee's favour and may not exceed the statutory ceiling.
- May the wage be reduced during probation? No. The agreed wage is payable in full.
- Is social insurance due during probation? The registration obligation applies to covered categories from the start of the relationship.
- What if I am terminated the day after probation ends? Termination is then subject to the ordinary rules including notice.
Practical Guidance
- Employees should read the probation clause and verify its duration and the actual start date.
- Retain evidence of your start date: access card, first salary transfer, and appointment correspondence.
- Do not sign a declaration that no sums are owed before calculating your days worked and leave pay.
- Employers should stipulate probation in writing with a precise duration, as omitting it forfeits the benefit entirely.
- Document the termination decision with a fixed date before the period expires, as a single day's delay changes the legal position.
- Do not repeat probation with the same employee, as repetition is void and may be construed as circumvention.
Probation is a flexible tool both sides need, but its flexibility depends on observing its formal and temporal controls. Yamnak Law Firm drafts employment contracts governing probation and its effects and represents both sides in disputes over termination during or after it.
