Probationary Period According to the Labor Law - Duration, Termination, and Obligation to Provide Explanation
Probationary work is legally defined according to Article 36 of the Labor Law. This article prescribes the conditions and rules related to the probationary phase. According to Article 36, an Employment Contract may include a provision for a probationary period to perform connected or related tasks established by the employment contract.
- Maximum Duration: Six months.
- Notice Period: Minimum of five working days (if terminated before the expiration of the agreed period).
- Obligation to Provide Explanation: The employer is obliged to provide a reasoning for the termination.
Work Result Evaluation Procedure
Termination during the probationary period cannot be given arbitrarily by the employer; it must be the result of an actually conducted evaluation process and the employee's probationary work results.
This means that the employer must entrust the monitoring and evaluation of the probationary work either to a direct supervisor or form a commission with clear criteria and deadlines for the evaluation and results of the probationary work.
Law Amendments and Legal Basis
Amendments to the Labor Law from 2014 were introduced in the third paragraph of this article: "The employer is obliged to explain the termination of the employment contract." Prior to these amendments, probationary work could be terminated without the obligation to provide a specific explanation.
Opinion of the Ministry of Labor, Employment, Veteran and Social Affairs (No. 011-00-00450/2014-02):
"Article 36, Paragraph 4 stipulates that an employee who, during the probationary period, has not demonstrated appropriate work and professional abilities, shall have their employment terminated on the day of the expiration of the period specified in the employment contract."
It follows that if the evaluation is unsatisfactory, the employer issues a termination decision in accordance with Article 36, Paragraph 4 and Article 185, Paragraph 5 of the law (employment ends on the day the decision is delivered).
Case Law: Supreme Court of Cassation
The decision of the Supreme Court of Cassation Rev2. 3128/2020 confirms key differences in employer obligations:
- Mandatory notice period (min. 5 days)
- Mandatory detailed explanation
- No notice period required
- No legal obligation for a special explanation (according to Paragraph 4)
Conclusion
The employer is obliged to provide an explanation for the decision to terminate employment during probationary work only if the termination occurs before the expiration of the agreed period. Conversely, for an employee whom the employer evaluates as not having met the required abilities, the employment ends with the expiration of the probationary period without the obligation to provide a notice period or a specific explanation.