Termination of employment agreement of a pregnant employee during probation period
Lexology, June 13, 2019
One of the options employers may exercise to protect themselves against an inefficient employee is by agreeing to a system of probation work. Its purpose is to enable an employer to evaluate the skills and progress of a new employee and be able to terminate any employee that is not doing well, or is deemed not to be suitable for a particular position.
The Croatian Labor Act contains a relatively moderate number of provisions applying to probation work. One of the consequences of this is the ever-increasing role of the national employment courts in interpreting probation work, in particular the legality of its termination.
In addition, the 2014 version of the Labor Act has introduced a completely different concept in regard to statutory dismissal on the basis of an employee’s failure to meet the employer’s expectations during probation work. As opposed to the pre-2014 Labor Act, which in this respect may be considered strict and inflexible, the new Labor Act offers, from an employer’s perspective, a more flexible regime, especially when it comes to termination of employment.
As with its predecessor, the new Labor Act states that probation work may be only agreed at the employment agreement stage, and not when employment has already commenced. According to established court practice of the Croatian Supreme Court, probation work is deemed to be valid only if it is agreed with a new employee and is not part of a residual agreement with an employee who has been redeployed elsewhere in the company. The new Labor Act – similarly to the old one – defines the maximum time probation work may last, which is no more than six months whereas a notice period is at least seven days.
If both versions of the Act have the same provision in respect of conditions for agreeing probation work, its duration and notice period, a legitimate question is what then differentiates the old and the new regimes in terms of how easy it is to fire an employee during a probation period?
The new Labor Act explicitly states that an employee’s failure to meet an employer’s expectations during probation work represents just cause for termination of employment. Such a termination will not be subject to the application of the provisions of the Labor Act regulating termination of employment, with the exception of Article 120 (the notice period is required to be explained in writing and delivered to the employee), Article 121 (the statutory notice period shall be observed), and Article 125 (if the court finds termination to be invalid, it has the authority to terminate employment upon the request of the employee or the employer) of the Labor Act.
Furthermore, the Labor Act protects certain categories of employees who, as a general rule, cannot be dismissed. Under Article 34 of the Labor Act, during pregnancy, maternity leave or adoptive leave, exercising the right to part-time working hours for the purpose of taking care of children with serious developmental problems – by parents or adoptive parents during a period of 15 days after the cessation of pregnancy or the cessation of the exercise of these rights – an employer may not terminate the employment agreement of a pregnant woman or a person exercising one of the aforementioned rights. A dismissal will be null and void if, on the day of dismissal, an employer was aware of the referred circumstances or if the employee notifies the employer within 15 days of receiving the notice of dismissal, by enclosing an appropriate certificate signed by an authorised physician or authorised body.
By comparing the provisions of the Labor Act regulating dismissal of the employee during the probation work with the ones applying to general prohibition of dismissal of a pregnant employee, it should be noted that the dismissal of an employee during probation work does not provide an exception when it comes to dismissal of a pregnant employee during the probation work. The right of an employer to dismiss a pregnant employee during probation work has been confirmed by the case law of the Municipal Court in Zagreb, which decides employment law disputes, and the County Court in Split, as the appellate court.
However, despite actual court practice, which takes the view that pregnant employees are not absolutely protected against dismissal during probation work, having regard to an employer’s obligation to give notice in writing and to provide an explanation as to the reasons for termination, the right of termination during probation work does not entitle the employer to arbitration. For the dismissal to be deemed legally valid, it has to be objectively grounded, in that the employer has to be capable of explaining the reasons why the employee has not met expectations during the probation period. In practice, employers have broad discretion in proving an employee’s failure to meet expectations. Still, any grounds that could not be objectively assessed but could be deemed discriminatory revolving around matters like age, sexual orientation, religious belief and pregnancy, will be deemed illegal and the dismissal shall be considered invalid, even if it was given during a probation period.
It should be noted that there is no guarantee that the notice of dismissal of a pregnant employee will remain valid, even if it has been decided that an employee has failed to meet employer expectations. At this point in time, the Croatian Supreme Court has still not taken a firm stand in this respect. Besides, it should be emphasised that, as opposed to the European Social Charter, which does not provide for the protection of pregnant employees against dismissal during probation work but only those on maternity leave, the Revised European Social Charter – which has yet to be ratified by the Croatian Parliament – determines that the prohibition of dismissal during probation work applies without distinction to both pregnant employees and employees on maternity leave. Until that time there is no sufficient legal basis to claim for an absolute protection of a pregnant employee against dismissal during probation work.