The topic of the probationary period in employment law always sparks intriguing discussions and debates. It’s a frequent subject of discourse even within our law firm, which closely engages with and offers legal advice related to employment law. Often, as legal advisors, we’re sought after for assistance in the legal dilemma: is having a probationary period beneficial when initiating an employment relationship?
The probationary period, as a legal concept in employment law, pertains to the commencement of an employment relationship. It’s commonly referred to as an orientation or training phase before a new employee attains permanent status. Its primary purpose is to assess whether the new employee aligns well with the company’s culture and operational procedures. Naturally, mutual agreement between both parties is essential for the trial period to be established and legally binding.
According to the Macedonian Law on Labor Relations, the probationary period is limited to a maximum of 4 months from the initiation of the labor relationship. However, this law distinguishes a specific subset of workers—seasonal workers—for whom the trial period is limited to only 3 working days.
Interestingly, the legislator, in the context of probationary work as defined by Macedonian employment law, addresses two significant legal aspects:
Introducing probationary periods for new employees can lead to substantial improvements in work processes. By providing a dedicated period for assessment, employers can gain valuable insights into the performance of newly hired staff, a pivotal resource undoubtedly;
The implementation of probationary periods offers a potential avenue for employers to curtail expenses related to workforce management. In instances where inadequate performance or unsatisfactory results are observed during this trial phase, employers can avoid the expenditure associated with continued employment, marking a significant aspect of this two-way employment relationship;
The probationary period provides an opportunity for employers to solicit candid feedback from fresh team members. By identifying subpar results, employers can make informed decisions on whether to extend the employment relationship post the probationary term, as stipulated in the Employment Agreement;
The introduction of probationary periods brings forth the advantage of providing newcomers with a crystal-clear understanding of their responsibilities and expected performance standards right from the commencement of their tenure. This proactive approach ensures that employees are well informed about the working process and conditions during this phase, enabling them to visualize and align their own expectations accordingly;
Agreements concerning probationary periods should delineate the objectives and aims of training and orientation. This serves to streamline the process of discontinuation, as it obviates the necessity for elaborate procedures to justify the cessation of employment. This is especially significant given the complexity of our employment law landscape.
Introducing probationary periods may inadvertently raise the performance expectations of employees. This could result in heightened pressure for employees to outperform themselves to secure a permanent role, stemming from the inherent legal framework surrounding this practice.
Probationary periods may deter certain potential candidates from considering positions with employers that employ this practice. This apprehension could lead to a reluctance to apply to such companies.
In summation, the concept of a probationary period serves as a pivotal phase within employment dynamics, affording employers and employees the opportunity to gauge compatibility and effectiveness.
However, the integration of this practice necessitates meticulous attention to legal protocols, guaranteeing equity and adherence to employment standards. Employers stand to benefit from the insight gained before committing to permanent positions, thereby optimizing time, financial resources, and reducing the risk of onboarding underperforming staff.
Ana Tosic Chubrinovski – Managing Partner
The Annual leave, as a legal institute of Employment law, is a right that affects EVERYONE, regardless of the industry, regardless of education, and regardless of job position.
The right to Paid Annual leave is a FUNDAMENTAL LABOR RIGHT, which the ILO elaborates significantly in its foundations and regulates in particular in the Holidays with Pay Convention (Revised) 1970 (No.132). Moreover, the EU also elevates this right to the position of FUNDAMENTAL with the Charter of Fundamental Rights of the European Union, as a right that should ensure Fair and just working conditions.
Every Employee enjoys this right arising from the employment relationship and every Employer is obliged to provide the same to every Employee. But if we look at it from the position of a lawyer, an interesting dilemma opens up: which right is a „greater„ right… the right of the Employee to use annual leave whenever he wants or the right of the Employee to approve the annual leave when the work process allows it?
The aforementioned ILO Convention determines an optimal period for paid annual leave – three weeks’ paid leave each year but also defines the right to a proportional part of the annual leave, where it determines that those Employees who have been employed with an employer for less than one year, but longer than six months, are to have a right to a proportional period of paid leave.
This determination and definition of annual leave is also present in the Macedonian employment law, or more precisely in the Macedonian Law on Labor Relations.
Namely, the Legislator in our Employment law determines the minimum number of days of annual leave to be 20 working days, while the maximum – is 26 working days, which in principle is equal to the determination of the ILO regarding the duration of the minimum with Paid Annual leave. In addition, the Convention specifies that it should be possible for an employee to take two weeks of annual leave in one block without interruption, which is also an obligation for Macedonian Employers.
Although there is a legal institute – proportional part of annual leave, it is general and it penetrates through working laws, however, details about its application remain in the “gray zone”. Hence, both Employees and Employers often seek legal advice on when and how to apply the days indicated as a proportional part of the vacation. For now, the strict application of this part of the employment law remains, that this legal institute is used only in the period before the right to a full annual vacation is acquired. That period is defined in Macedonian legislation as a six-month period from the establishment of the employment relationship with that Employer.
Also, The Convention also provides that the timing of the leave period should in principle be determined by the Employer, in consultation with the Employee or his or her representatives, which as a legal solution is also accepted in our labor law in article 138 of the Law on labor relations. So, the Employer BUT taking into account the needs of the work process above all, as well as the opportunities for rest and recreation of the Employee is obliged to provide this right as an absolute, mandatory, and unconditional right of the Employee.
Given that our country is aiming for the EU, we would like to point out that the EU has set minimum standards for working hours and rest, breaks, annual leave, and night work. In addition, those standards provide that derogations from some of the working time obligations are possible if allowed by national law. Such standards that refer to specific aspects of working time, among other things, and generally for Annual Leave, are covered by a separate Directive 2003/88/EC of the European Parliament and of the Council of November 4, 2003.
In this Directive, it is stated that each Member State shall take the necessary measures to ensure that every Employee is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and /or the practice. Hence, we can conclude that this standard, considering that it reflects the lower limit or the minimum of the duration of the vacation time is above the minimum provided by our Labor Law. So considering the above stated, it is obvious that the Employees in the EU in terms of this right that is within the working law puts the Employee in a better situation. The standard set by the EU in relation to annual leave is that the minimum period of paid annual leave cannot be replaced by an allowance instead, except where the employment relationship is terminated.
So, we can conclude that the conditions for the entitlement and granting of annual leave are subject to national regulation, but those could not be under the minimum legal standards which are accepted as fundamental.
We, as a law firm, are in line with the legal position that the entitlement of every Employee to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations.
Moreover, the CJEU ruled that so-called ‘rolled-up holiday pay’ – the practice of incorporating the payment of annual leave into a worker’s hourly or daily wage without the worker receiving additional payment – is contrary to the mentioned Directive, as the practice does not guarantee that the minimum four-week leave will actually be taken, so this position of the CJEU, for us, is absolutely acceptable and we, as a law firm, support it in total.
But, definitely, this right should be in accordance with the needs of the work process above all, as well as the opportunities for rest and recreation of the Employee.
Ana Tosic Chubrinovski – Managing Partner