LEGAL FRAMEWORK

The intention of the legislator for employees to enter indefinite employment contracts requires a specific mechanism to protect the employer in cases where the employee does not meet the employer's criteria. In this regard, the legislator prescribes a special article in the Labor Act ("Official Gazette" no. 93/14, 127/17, 98/19, hereinafter: LA) which regulates probationary/trial work.

According to Article 53 of the LA, when establishing an employment relationship, the employer has the option to agree with the employee on a probationary period limited to a maximum of six months. Consequently, the unsatisfactory performance of an employee during the probationary period is recognized as a valid reason for termination of the employment contract, simplifying the process of terminating the contract for the employer when the employee fails to meet expectations during probation.

This is an institute of employment law that allows employers, on one hand, and employees, on the other hand, to assess the subjective and objective qualities of the other party in the employment relationship. It enables the employer to establish a contractual relationship for the purpose of evaluating the employee's abilities and familiarizing them with the conditions of the assigned job.

The purpose of probationary work can be defined as a period during which the employer could assess whether the employee meets the criteria for the assigned position within a specific timeframe. If the employee fails to meet the criteria, the employer can terminate the contract through a simpler procedure.

Article 53, paragraph 4 of the LA explicitly stipulates that the provisions of the LA regarding termination of the employment contract do not apply to decisions to terminate based on unsatisfactory performance during the probationary period, except for provisions specifying the form, reasoning, delivery of the termination, commencement of the notice period, and judicial termination of the employment contract. If the employer terminates the contract due to unsatisfactory performance during probation, the notice period must be at least 7 days, but it can be longer if agreed or if another legal source that provides more favorable rights for the employee applies (collective agreement, work rulebook, agreement between the workers' council and the employer, employment contract).

COURT PRACTICE

The employer's statement that is not satisfied with the employee's work is sufficient for the termination of the employment contract in which the trial work was agreed, but this assessment must not be discriminatory.

Sentence of the County court in Osijek, nr: Gž R 75/2023-3, datum: 02.03.2023.

When the employee and the employer conclude an oral employment contract with the agreement of trial work, i.e. when the parties to the labor relationship failed to conclude a written employment contract, but verbally agreed to establish an employment relationship with trial work, then there is no place for the application of the legal provision which stipulates that if the employer before the start of work, does not conclude an employment contract with the worker in written form or does not issue him a written confirmation of the concluded employment contract, it will be considered that he has concluded an employment contract with the worker for an indefinite period, precisely because the verbal clarifications of the parties were indisputably such that the trial work was contracted in this way.

Sentence of the County court in Rijeka, nr: Gž R 59/2020-2, datum: 11.03.2020.

If the employee was employed by the employer, then when concluding a new employment contract there was no basis for contracting a trial work, since a trial work can be contracted only when the employee’s employment relationship is established with a certain employer and not during the duration of the employment relationship.

Sentence of the County court in Varaždin, nr: Gžx 26/09-2, datum: 18.08.2009.

Dismissal in the event of dissatisfaction with the probationary period is a regular termination of the employment contract, since the failure of the probationary period is decisively included as a special, legally justified reason for termination of the employment contract.

Sentence of the Supreme Court of the Republic of Croatia, nr: Revr 525/07-2, datum: 12.12.2007.