Probationary work is regulated by the Labor Law, which in Article 36 prescribes: "An employment contract may contract probationary work for the performance of one or more related or associated tasks determined by the employment contract. Probationary work can last up to six months. Before the expiration of the time for which the probation work was contracted, the employer or the employee may cancel the employment contract with a cancellation period that cannot be shorter than five working days. The employer is obliged to justify the termination of the employment contract. An employees contract shall be terminated on the day of the expiration of the term determined by the employment contract if he has not shown adequate working and professional abilities during the probationary period."
Amendments to the Labour Law from 2014. a provision was added in paragraph 3. "The employer is obliged to justify the termination of the employment contract." Until those changes, the probationary work could have been canceled with respect to the notice period, but without special explanation. After the changes, the obligation of the employer is to establish the manner of checking the working and professional abilities of the employee, so that the termination of employment by dismissal during the probationary period would be legal. However, the notice period is not prescribed in case of cancellation at the end of the probationary period. In that sense, the Opinion of the Ministry of Labor, Employment, Veterans and Social Affairs, no. 011-00-00450 / 2014-02 of 1 September 2014, which reads:
"Article 36, Paragraph 4. stipulates that an employees contract shall be terminated on the day of the expiration of the term determined by the employment contract if he has not demonstrated appropriate working and professional abilities during the probationary period."
It follows from the above that the employer evaluates the employee's ability during the probationary period, and if that assessment is unsatisfactory, the employer will issue a decision on dismissal in accordance with Article 36, paragraph 4. and Article 185, paragraph 5 of the Law. " The mentioned Article 185, Paragraph 5 prescribes that the employment relationship ends on the day of delivery of the decision. In that sense, the case law is inimitable.
However, the question arises as to whether the employer is obliged to justify the Decision on termination of employment at the end of the probationary period. A literal interpretation of the provision of Article 36, paragraph 4, would say that such an obligation does not exist.
This is the position of the new decision of the Supreme Court of Cassation Rev2. 3128/2020. "The possibility of establishing an employment relationship with contracting a probationary period and its longest duration, termination of employment before the expiration of the probationary period with leaving a notice period of at least five working days and termination of employment upon expiration of the contracted probationary period, is regulated by Article 36 of the Labour Law ("Official Gazette of RS" no. 24/05, ... and 75/14, valid at the time of passing the challenged decision). The aforementioned legal provision stipulates that the employer is obliged to justify the termination of the employment contract in the event that the employee terminates the employment contract before the expiration of the period for which the probationary period was agreed, in which case he is obliged to leave a notice period shorter than five working days (Article 36, paragraph 3 of the Labor Law). However, paragraph 4 of this Article stipulates that an employees contract shall be terminated on the day of the expiration of the term determined by the employment contract if he has not demonstrated appropriate working and professional abilities during the probationary period."
"Proper application of the mentioned legal provisions implies that the employer is obliged to explain (justify) his decision in the decision on termination of employment by which he proves that the employee has not shown adequate working and professional abilities, ie that his work results are unsatisfactory - only if Conversely, pursuant to Article 36, paragraph 4 of the Labour Law, an employee whose employer considers that he has not shown adequate work and/or professional abilities, employment is terminated at the end of the probationary period, in which in this case, the employer is not obliged to leave him a notice period, nor is he obliged to specifically explain the decision on termination of employment on this basis. "
14.09.2021.