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Employment law

By Buju, Stanciu & Asociații

Probationary period in the individual employment contract: what employers and employees need to know

What is the probationary period

The probationary period represents an interval of time during which the employer can verify the employee's training, skills and compatibility with the requirements of the position, while the employee can assess whether the position is suitable for them. During the probationary period, either party (employee and employer) may terminate the individual employment contract.

How long does the probationary period last

For fixed-term contracts, this may last no more than 90 calendar days for executive positions, and no more than 120 calendar days for management positions. For persons with disabilities, the probationary period must not exceed 30 calendar days. Fixed-term employment contracts have a probationary period which may not exceed:

  • 5 working days for an individual employment contract with a duration of less than 3 months;
  • 15 working days for an individual employment contract with a duration of between 3 and 6 months;
  • 30 working days for an individual employment contract with a duration of more than 6 months;
  • 45 working days in the case of employees holding management positions, for an individual employment contract with a duration of more than 6 months.

Termination of the contract during the probationary period

If you are employed and do not like your workplace, or you have obtained another position during the probationary period, you have the right to resign from that position, with your obligations ceasing immediately. If you are employed, the Codul Muncii (Labour Code) provides that you may terminate the employment contract during the probationary period exclusively by written notice, without prior notice and without any need to state reasons. However, a recent decision of the Curtea de Apel Iași (Iași Court of Appeal) held that, for the notice of termination of the individual employment contract during or at the end of the probationary period to be valid, two important conditions must be met: (i) the written form of the notice and (ii) compliance with the purpose for which the rule was enacted. This means that, although the formal act need not be reasoned, the cause of the termination of the employment contract must be directly related to the purpose of the probationary period, namely to verify the employee's skills.

Thus, in the event of a potential dispute, the employer bears the responsibility of bringing convincing evidence to demonstrate that the termination of the employment relationship took place for justified reasons. The employer must demonstrate that the employee lacked the professional knowledge or skills required for the position, that they failed to adapt to the workplace, or any other aspect that could justify the termination of the individual employment contract. In this way, a potential accusation of unfair dismissal can be avoided.