Dismissal on probation

By: van Orsouw 08-06-2020 8:48 AM
Categories: * Daily employment news, ** HR daily news, ** HR Legal Clinic,

Dismissal on probation
How does the trial period work?
The probationary period is a short period at the beginning of an employment contract in which the employment contract can be terminated immediately by both the employer and yourself. There is only a probationary period if this period has been agreed upon in writing.

Duration of the probationary period
The maximum duration of the probationary period that can be agreed depends on the length of your employment contract. For example, the probation period for an open-ended employment contract may not exceed two months. Even if there is a fixed-term employment contract with a duration of two years or longer, a trial period of two months may be agreed.

If you have a fixed-term employment contract with a duration of less than two years but longer than six months, the probation period may not exceed one (1) month. This is the case, for example, with an annual contract. If there is an employment contract with a duration of six months or less, no trial period may be agreed at all.

Rules regarding the probationary period are strictly applied
Rules regarding probation must be strictly observed by an employer. If this does not happen, the probation period is void. This means that the probation period is not valid, for example if:

  • the probation period for both parties is not exactly the same length
  • the employer has included a probation period longer than two months in the employment contract
  • the employer has included a probationary period in a subsequent (second or third) employment contract while there is no other job and other activities
  • the employer has included a probationary period in an employment contract with a duration of six months or less

Can I always be fired during the trial period?
In many cases yes, but not always. In the first place, of course, the question is whether there is a valid probation period clause. This means that the probation period must be agreed in writing and has a maximum duration that corresponds to the length of your employment contract.

If there is a valid trial period, the main rule applies that both the employer and you can terminate the employment contract with immediate effect during the trial period. In that case, your employer does not need permission from the UWV Werkbedrijf and does not have to go to the subdistrict court to terminate your employment contract.

During the probationary period, a number of cancellation bans do not apply. This means, for example, that during your probationary period your employer may also terminate your employment contract if you are ill or pregnant. On the other hand, your employer may not terminate the employment contract due to illness or pregnancy.

Dismissal prior to probation
It is generally accepted that an employment contract with a probationary period may be canceled by the employer (but also by the employee) even before the commencement date of the employment contract.

During your probationary period, your employer, therefore, has broad powers to terminate an employment contract with immediate effect, but this power is not unlimited. For example, if you believe that the termination of your employment contract during the probationary period has occurred on discriminatory grounds (for example, because the employment contract has been terminated due to pregnancy), you can request the subdistrict court to cancel the termination or to prejudge the employer. to pay compensation (in legal professional language: a fair compensation).

You must then have submitted a request to the subdistrict court within two months after the dismissal date.

Cancel during the trial period
During the probationary period, an employment contract can be canceled by both parties with immediate effect. In that case, there is therefore no notice period to be observed.

The trial period must be agreed in writing and for the correct duration. For example, an oral probation period is not valid. Moreover, no trial period may be included at all in short temporary employment contracts. The probation period is limited to the following duration:

In the case of an employment contract for an indefinite period (or a fixed-term employment contract of two years or longer): a maximum of two months
For a fixed-term employment contract shorter than two years: a maximum of one month
For a fixed-term contract of six months or less: a probationary period is not permitted
No cancellation bans during probation
Also, the prohibitions on termination of illness and pregnancy do not apply during the trial period. This means that the employment contract can be terminated by the employer even if the employee in question is ill at that time. However, the reason for dismissal on probation should not be discriminatory or directly related to the illness or pregnancy.

An example
During the trial period, Mariëlle works as a dental assistant at a dental practice. The first weeks of the probationary period go without problems. One day Mariëlle reports to her employer that she is pregnant. Immediately thereafter, her employer informs her that she has been dismissed immediately during the probationary period.

Despite the fact that the dismissal took place during the probationary period, Mariëlle can object to this state of affairs. Her employment contract was canceled due to her pregnancy. Suppose Mariëlle had been fired because her employer believed that she was not functioning well, she could not contest this dismissal, even if she was pregnant.

Obligation to communicate about the cancellation
If an employer terminates the employment contract, he does not have to state explicitly in the termination letter the reason for the dismissal. However, if the employee requests this, the employer must still indicate in writing why he has resigned.

Source: https://ontslag.nl/

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