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Probationary employment contract

Probationary employment contract is a specific legal tool enabling the employer to check the skills, competence and the employee‘s usefulness. While, the employee thanks to such solution can ‘to try out’ the place of employment, make sure whether it suits them and whether it meets their expectations. In the present article I will expand on the rules applicable to the conclusion of probationary employment contracts as well as distinguishing features of this type of engagement in relation to the general rules applicable to the conclusion of employment contracts.

There are several different types of employment contracts in the Polish law.

  1. Employment contract for an indefinite period of time stands out for the fact that it does not include the date of termination. It lasts from the moment it is concluded until its termination or expiration for other reasons (e.g. employee’s death). This type of agreement protects employees rights best, guarantees them legal and factual rights, but also burdens employer’s rights most, therefore, they give up this form of employment agreement quite often today.
  2. The second type of employment contract is a fixed-term employment contract which is in force until the ens of the contract duration period. This kind of contracts are terminated automatically without any of the parties‘ interference as of the calendar within the lapse of time they were concluded for. The employer can tell the employee in advance that the contract termination date is close and they are not going to extend it, however that does not belong to employer‘s duty. In case of so-called ‘contract renewal’, that is a situation in which the parties decide to extend their cooperation, it is considered that the new agreement for the next definite period is concluded next day after the first agreement termination date (Art. 251 § 2 Labour Code). But bear in mind that such contract shall not be extended ad infinitum. The third contract in a row concluded between the same parties becomes as of right the contract for an indefinite period of time, if there were no breaks longer than a month between the individual contracts (Art. 251 § 1 Labour Code). Exception to this principle are only the replacement employment contract as well as casual or seasonal or periodic employment contract (Art. 251 § 3 Labour Code). If the fixed term contract is concluded for longer than 6 months, parties can set a two-week notice period. In case of agreements concluded for shorter period there is not notice period (Art. 32 and 33 Labour Code).
  3. Employment contract for a specific task or service is the third type of employment contract known in the Polish legal system – is in force until a certain work is done, e.g. building the house. 

And at this point we reach the subject of probationary employment contracts – the Labour Code provides that conclusion of the employment contract both for definite and indefinite period of time, or agreements for a specific task or service as well as replacement agreements can be preceded by the conclusion of a probationary employment contract (Art. 25 § 1 Labour Code). 

In the legal literature there is an opinion that this special type of agreement by its character is similar to a terminal contract. However, as stated by the Supreme Court in the ruling of 26 August 1999 (ref. Act I of PKN (Polish Committee for Standardization) 215/99), the probationary employment contract is not a fixed-term contract. This has a great importance in the light of the regulations providing that the third fixed-term contract in a row is automatically changed into the contract for an indefinite period of time. Article 251 of the Labour Code is not applicable to the probationary employment contract. According to the above article the conclusion of the next fixed-term contract of employment is legally tantamount to the conclusion of the employment contract for an indefinite period of time, if the parties previously twice entered into fixed-term contract of employment for successive periods, provided that the gap between the termination of the previous and conclusion of the following contract did not exceed one month.

The employer can, but does not have to precede the conclusion of the main contract with the probationary employment contract. It is assumed that the aim of entering into such probationary employment contract is to let the employer get acquainted with the possibilities of hiring a certain person on a specific position, ‘verify’ and ‘try out’ such employee’s ability to perform their work. Whereas, the employee is given an opportunity to get acquainted with the working conditions on a specific position, ‘try out’ the employer, social conditions in the employing establishment, working conditions and finally the real opportunities to fulfil their professional aspirations. In this particular case the general principle of freedom to enter into employment contracts is expressed in the fact that both parties have the right to suggest and agree on preceding the conclusion of the permanent employment contract by the probationary employment contract.

Nevertheless there are certain restrictions – probationary employment contract shall not be concluded either for less than seven days or for more than three months. The minimum seven-day duration period of such agreement guarantees that the aim of its conclusion will be fulfilled at least within the minimum scope – that is the mutual ‘try out’ of the employer and employee. Limitation of the duration period of the probationary employment contract to maximum three months results directly from the content of the regulation provided for in the Art. 25 § 2 Labour Code and is motivated by concern of the legislator for the employee’s interest. ‘Testing’ the employee for too long would collide with the purpose of this legal solution ensured by the code. Moreover, that would put the employee in the adverse situation of uncertainty about their own future. The probationary period often relates to the remuneration lower than the one received later, during the traditional employment contract. This aspect also has a great importance for most people. Then if the parties due to their ignorance, mistake, ill will or any other reason settled the contract duration period longer than three months, then such contract expires within three months. Thus, the principle of replacing solutions invalid or forbidden in the light of the law with the ones provided for in the Labour Code is applicable. It is included in the Article 18 of the Labour Code, according to which provisions of employment contracts cannot be less favourable for employee than provisions of the labour law (§ 1). Such less favourable provisions are regarded as invalid – the adequate regulations of the labour law are applied instead (§ 2).

Probationary employment contract same as any other contract of employment, shall be concluded in writing with a clearly defined character (Art. 28 § 2 Labour Code). Yet the agreement concluded orally or implicitly, by allowing the employee to a place of work, is valid. The employer must however provide the employee with a written version of the contract (so-called confirmation note of the contract conclusion) on the first day of work at the latest. Failure of this obligation is a violation of employee rights and results in a penalty (Art. 281 item 2 Labour Code). 

The probationary employment contract, same as any employment contract, shall include the following elements:

  • specification of the parties to the contract: who is the employer and who – the employee.  Both natural (e.g. owner of the bakery who employs an assistant) and legal person – an enterprise, office, association, foundation etc. can be an employer. Only a natural person can be an employee;
  • determining the type of agreement − whether it is concluded for a definite or indefinite or probationary period of time. If the contract does not include this element, such agreement automatically becomes a contract for an indefinite period of time;
  • date of the conclusion;
  • working conditions and remuneration;
  • type of work, i.e. specification of duties of the employed. This is done by indicating a specific position (manager, mechanic), describing the scope of duties (driving the tram, operation of the lathe) or determining the character of performed work (here we use expressions such as ‘as a clerical officer’);
  • specification of the place where work is performed. In case of professions, as for which it is hard to do it (e.g. sailor, international transport driver), determining the place of work must take this specificity into account;
  • working hours;
  • date of the beginning of work;
  • the amount of remuneration for work with an indication of components of the remuneration. It can be done directly, by providing the amount of individual elements (pay, allowance, bonus) in PLN. However, employers often determine the amount of the salary indirectly, referring to the scale of charges or the company collective agreement applicable in the employing establishment.

According to Article 32, § 1, item 1, Labour Code each party of the agreement can terminate the probationary employment contract. According to the Article 34 of the Labour Code the length of period of notice can amount to:

  • 3 working days, if the probationary period is not longer than 2 weeks;
  • 1 week, if the probationary period is longer than 2 weeks;
  • 2 weeks, if the probationary period is 3 months.

Unfortunately positive self-presentation by an employee during the probationary period does not guarantee entering into the successive contract of employment.  The employer does not have a duty to conclude the traditional contract of employment even if the probationary employee performs his duties carefully and properly. Such a solution satisfies the principle of freedom to enter into agreements. For the employee, especially young one, this is not a beneficial solution. Yet, the practice shows that in most cases a successful probationary period results in permanent employment. As a rule, that is not why an employer invests in the employee’s probationary period, to resign to employ a reliable worker later on.  Therefore, it is worthwhile to accept this kind of offers and use one’s chance. 

Sławomir Krenczyk