Probationary Employment in Serbia: How to Agree and Implement It Properly

The employer hires a new employee and states in the contract that the probationary period lasts six months. However, it has not been determined who monitors his work, what is expected of him, or on the basis of which criteria it will be concluded whether he has satisfied. A few months later, the immediate manager assesses that the employee is “not good enough” and proposes to terminate the employment relationship.

The problem is that a general impression, without concrete facts and a clear connection to the requirements of the workplace, can hardly be a reliable basis for making a decision.

Entering the term “probationary employment” in the employment contract is necessary, but not sufficient for good legal risk management. Probationary employment should be clearly agreed, meaningfully implemented and based on verifiable criteria.

At the same time, a probationary employee is not a person who works outside the labour law system. He has established an employment relationship and has rights that belong to other employees.

What Is Probationary Employment?

A probationary period is neither a separate type of employment nor an informal period preceding employment. It is a contractual arrangement during which the employer assesses whether the employee has the occupational and professional abilities required for the agreed duties.

According to the Labour Law of the Republic of Serbia, a probationary period can be contracted for the performance of one or more related, i.e., related jobs determined by the employment contract. It can last up to six months.

The employee realizes the rights and obligations from the employment relationship on the day of starting work, based on the previously concluded employment contract. During the trial period, he has the right to the contracted salary, application for mandatory social insurance, prescribed working hours, vacations, safe working conditions and protection against discrimination.

Probationary employment should be distinguished from:

• professional practices;
• internship work;
• professional training;
• volunteering;
• short practical checks in the candidate selection procedure;

work without a contract and registration.

The employer should not invite the candidate to perform regular work for a few days or weeks “to see how he works”, without a signed contract and application. When the candidate actually participates in the work process, executes orders and performs tasks for the needs of the employer, it is no longer just a question of candidate selection.

How to Properly Agree a Probationary Period

Probationary employment must be stipulated in the employment contract, which is why it is important for the employer to check beforehand what the employment contract should contain and whether the rights and obligations of both parties are sufficiently regulated.

. The employer cannot subsequently assume it because the employee is new, nor can he introduce it only by verbal agreement.

The contractual provision should clearly contain:

• the fact that the probationary employment is contracted;
• jobs for which contracts are made;

the period of its duration.

The law stipulates that the probationary period is linked to one or more related, i.e., related jobs determined by the contract. That is why it is not good to use vague formulations according to which the employee is checked for all tasks that the employer might entrust to him.

For the sake of greater legal certainty, it is advisable to arrange with a contract or an appropriate internal document:

• date of beginning and end of probationary employment;
• expected results;
• the person who monitors and evaluates the employee;
• basic assessment criteria;
• method of recording results;
• dynamics of providing feedback;

method of compiling the final grade.

These elements are not all expressly prescribed by Article 36 of the Labour Law as mandatory content of the contract. However, they can be very important if a dispute later arises as to whether the employee has demonstrated appropriate work and professional abilities.

When the method of monitoring a probationary period and the person responsible for evaluation are pre-arranged by the contract, rulebook or other act of the employer, the employer should act in accordance with those rules. Deviation from the predetermined procedure can lead to the illegality of the decision to terminate the employment relationship, as shown by the practice of the Supreme Court on the evaluation of an employee during a probationary period.

How Long Can a Probationary Period Last?

Probationary employment can last six months at most. This is the legal maximum, not the recommended duration in each case.

For simpler jobs, a shorter period may be sufficient. In the case of professional, complex or managerial jobs, it is justified to agree on a longer duration, but even then it cannot exceed six months.

The period must be clearly defined. The wording according to which the probationary period lasts “until the employer assesses that the employee is qualified” does not provide the necessary legal certainty.

A probationary period can be contracted for both fixed-term and indefinite-term employment. This is also confirmed by the Supreme Court’s decision on probation for fixed-term contracts.

In the case of fixed-term contracts, the relationship between the total duration of the employment relationship and the trial period should be taken into account. When both periods are of the same length, it should be carefully assessed whether such contracting is justified by the purpose of the probationary employment.

A probationary period may not last longer than six months. The subsequent extension of the contract annex is particularly risky when it compensates for the employer’s failure to evaluate the employee in a timely manner or when a new trial period is actually established for the same jobs.

How to Properly Conduct and Assess a Probationary Period

The purpose of the probationary period is not to allow the employer to arbitrarily terminate the employment relationship. Its purpose is to verify in real conditions whether the employee can successfully perform the contracted tasks.

Determine the expected results

Expectations should be adjusted to the specific workplace.

Knowledge of the offer, accuracy in billing and appropriate communication with customers can be expected from the seller. Accuracy, compliance with deadlines and knowledge of relevant regulations can be expected from the accountant. Organization of work, decision-making and team management can be expected from the manager.

Acquaint the employee with the criteria

An employee can hardly meet a standard that has not been communicated to him. That is why at the beginning he should receive a job description, expected results, relevant procedures and an explanation of how his work will be monitored.

Determine who monitors the work

An employee’s work can be monitored by a direct manager, mentor, director or a specially designated committee, depending on the size of the employer and the complexity of the work.

The most important thing is that it is clear who is responsible for monitoring and that this person has immediate insight into the employee’s work.

Give feedback

A probationary period should not be reduced to several months of silence, after which the employee learns for the first time that he was not satisfied.

Periodic feedback allows the employee to understand where there are gaps and what is expected of him. It is a good organizational practice, but it should not automatically be presented as a procedure that is expressly prescribed by law in every case.

In the case of dismissal during a trial period, the employer is not obliged to give the employee a special deadline for improving work, as in the case of certain other reasons for dismissal.

Record concrete results

Documentation may include:

• reports of the immediate manager;
• achieved and unachieved goals;
• data on quality and deadlines;
• results of expert checks;
• customer complaints;
• interview minutes;
• written instructions;

checklists.

The goal is not to create unnecessary bureaucracy, but to allow the decision to be based on facts and not on an afterthought.

Make a decision before the deadline

The employer should carry out an assessment before the end of the contracted trial period. Failure to make a timely assessment may preclude reliance on the special termination of employment regime for unsatisfactory probation results.

Termination during trial period

During the trial period, the employment contract can be canceled by both the employer and the employee.

The notice period cannot be shorter than five working days. When the employer gives notice, he is obliged to explain his decision.

An employee who cancels the contract during the trial period is not obliged to explain his decision.

When the employer gives notice, it is not enough to simply write that the employee “did not satisfy”. The solution should enable the employee to understand why his employment is terminated.

A good explanation states:

• what jobs the employee performed;
• who followed his work;
• what deficiencies have been identified;
• when and in what way they manifested;
• why they are important for a specific workplace;

on which data the rating is based.

In one case, the Supreme Court found illegal dismissal without specifically stated reasons, when the employer only stated that the contract was being canceled during the probationary period.

A probationary period does not abolish the prohibition of discrimination, nor does it enable dismissal due to the employee’s personal characteristics. The employer may not use it as a disguised reason for dismissal due to gender, pregnancy, medical condition, family status, union activity or other protected characteristic.

What happens after the trial period ends?

If the employee demonstrates appropriate work and professional abilities, he continues to work in accordance with the existing contract. It is not necessary to conclude a new contract just because the trial period has expired.

If, during the trial period, it was established that the employee did not demonstrate appropriate work and professional skills, his employment relationship ends on the day of expiry of the term specified in the employment contract.

This does not mean that the employer can wait for the last day and without any evaluation decide not to retain the employee. Termination is not based only on the passage of time, but on the determination that the employee has not demonstrated appropriate abilities during the contracted period.

This situation should be distinguished from dismissal before the end of the probationary period.

In case of cancellation before the end of the trial period:

• the employer makes a reasoned decision;
• gives the employee a notice period of at least five working days;

the employment relationship ends when the notice period expires.

In case of termination after the end of the trial period:

• it is previously determined that the employee has not demonstrated appropriate work and professional skills;
• the employment relationship ends on the day the period specified by the contract expires;

the notice period of five working days from the termination regime during the trial period does not apply.

Although Article 36 of the Labour Law binds the termination to the end of the contracted period, it is legally safer for the employer to provide the employee with a written document in which he will state that he did not demonstrate appropriate abilities and explain the facts on which that assessment is based.

Such a document enables the employee to understand the decision, and the court, if a dispute arises, to examine its legality. Judicial practice confirms the importance of a documented employee evaluation.

If the employment relationship is based on an indefinite period and the employee continues to work after the end of the trial period, the employment relationship continues according to the existing contract.

In the case of fixed-term contracts, the expiration of the trial period should be distinguished from the expiration of the contract itself. These are two different legal facts.

The most common mistakes of employers

Probationary employment is not specified in the contract

If the contract does not contain a provision on probationary employment, the employer cannot later refer to the special regime from Article 36 of the Labour Law.

The employee is tested without a contract or registration

Unpaid performance of regular work under the pretext of checking candidates exposes the employer to a serious labour law and misdemeanor risk.

No jobs specified

The probationary employment must be related to contracted related or related work. Vague wording makes it difficult to determine what was actually checked.

Probationary employment lasts longer than six months

Duration exceeding the legal maximum is not in accordance with the Labour Law.

There are no comprehensible criteria

The law does not prescribe a universal evaluation pattern. However, the complete absence of criteria makes it difficult to prove that the decision is based on real work results.

The decision is based on a subjective impression

Formulations like “he didn’t fit in” or “he’s not our type of person” do not represent sufficiently reliable criteria if they are not related to the specific requirements of the workplace.

The dismissal was not explained

The employer who cancels the contract before the end of the trial period has an explicit obligation to state the reasons for his decision.

The decision is made after the end of the trial period

An employer who has not monitored and evaluated the employee in a timely manner risks losing the opportunity to refer to an unsatisfactory probationary period.

A probationary period and fixed-term work are mixed

The expiration of the probationary period does not automatically mean the expiration of the fixed-term contract, nor does the expiration of the fixed-term contract represent an assessment that the employee did not satisfy the probationary period.

How an employee can protect his rights

Before signing the contract, the employee should check:

• for which jobs the probationary employment is contracted;
• how long it lasts;
• whether the employment relationship is for a fixed or indefinite period;
• what is the contracted salary;
• what is expected of him;
• who monitors and evaluates his work;

how the eventual termination of the employment relationship is regulated.

The employee should save a copy of the contract, annexes, job description, electronic correspondence, work reports and any act related to termination of employment.

If he believes that his right has been violated, he can seek judicial protection. As the deadlines in employment disputes are short, legal advice should be sought without delay.

Checklist for employers

Before starting the probationary period

Is the probationary employment expressly agreed upon?

Are the jobs it applies to listed?

Is the duration clearly defined and not longer than six months?

Is the employee registered in a timely manner?

Are goals and expectations set?

Is it known who monitors the employee’s work?

During the probationary period

Does the employee get clear tasks?

Are the criteria linked to the job description?

Is the work really tracked?

Are important results and omissions recorded?

Does the employee receive understandable feedback?

Are the criteria applied consistently and without discrimination?

Before making a decision

Was the assessment done before the end of the probationary period?

Is the decision based on concrete facts?

Is it clear who evaluated the employee’s performance?

Does the rationale explain the deficiencies identified?

Is there a period of at least five working days for cancellation before expiry?

Have the legal prohibitions against dismissal been checked?

Have all related incomes been calculated?

Frequently asked questions

How Long Can a Probationary Period Last?

Six months at most. The contract can provide for a shorter period.

Does the employee during the probationary period have to be registered?

Yes. The probationary employment is performed within the framework of the established employment relationship.

Is the probationary employment paid?

Yes. The employee has the right to wages and other rights from the employment relationship.

Can probationary employment be contracted for work for an indefinite period of time?

It can. A probationary period can be contracted for both fixed-term and indefinite-term employment.

Can an employer terminate a job without giving an explanation?

No. When the employer cancels the contract before the end of the trial period, he is obliged to state the reasons for the cancellation.

What is the notice period during the trial period?

It cannot be shorter than five working days.

Can the probationary period be extended?

It cannot last longer than six months. A subsequent extension is legally risky, especially when it tries to compensate for a missed assessment or re-introduce probation for the same jobs.

What if the employee continues to work after the probationary period ends?

If the employment relationship is based on an indefinite period, it continues according to the existing contract. In the case of fixed-term contracts, the expiry date of the contract itself should be checked separately.

Conclusion

A probationary period can be beneficial to both the employer and the employee. It allows the employer to check the professional and working abilities of the employee in real conditions, while the employee can get to know the workplace, the organization and the employer’s expectations.

In order to achieve its purpose, the probationary period must be clearly agreed, time-limited and implemented on the basis of criteria related to the specific workplace. When the employer decides to terminate the employment relationship, he must be able to explain who accompanied the employee, what was expected of him and on what facts the assessment that he did not demonstrate appropriate abilities was based.

It is especially important to distinguish the termination of the contract during the trial period from the termination of the employment relationship at the end of the contracted period. The exact same conditions and deadlines do not apply to these situations.

Due to the possible consequences of an improperly drafted contract or illegal termination of employment, it is advisable to check the contract documentation and the planned procedure before signing the contract or making a decision.