As we have already noted in one of our previous texts (available here), the institute of probation period is regulated in one single article of the Labour Law (Official Gazette of RS no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision of CC, 113/2017 and 95/2018 – authentic interpretation), which stipulates:

• that employment agreement may envisage probation period for performance of one or more related and/or affiliated jobs established by the employment agreement;
• that probation period may last maximum six months;
• that prior to the expiry of probation period, employer or employee may terminate employment agreement with notice period of minimum five days, whereas the employer shall be obliged to elaborate the agreement termination; and
• that employee who failed to demonstrate appropriate working and professional capacities during probation period shall be terminated their employment on the day of expiry of the term established by the employment agreement.

However, the Labour Law does not explicitly stipulate whether employee’s probation period with one employer may only be contracted once, i.e., when entering into the employment, or it can be done several times. The answer to this question should therefore be sought in interpretation of the abovementioned provisions of the Labour Law, as well as court practice on this matter.

Purpose of probation period

As we have already noted, the Labour Law prescribes that probation period may be concluded for performance of one or more related and/or affiliated jobs established by the employment agreement, while employee who failed to demonstrate appropriate working and professional capacities during probation period shall be terminated employment on the day of expiry of the term established by the employment agreement.

It stems from the above that the aim, i.e., purpose of probation period is to establish during its term whether the employee has relevant working and professional capacity for working on the jobs that are subject to employment agreement, for the purpose of deciding on their further employment status with the employer.

Court practice

According to Ruling of the Appellate Court in Belgrade no. Gž1 137/2020 of May 22, 2020, probation period does not necessarily refer only to the first employment with one employer, i.e., employer may contract the probation period with the employee who enters into employment agreement for performance of jobs that they had not done before, for the purpose of checking their working capacity for such other job.

Rationale of the stated ruling stipulates:

• that the fact that plaintiff did not start employment with the employer for the first time, but she had been previously engaged by the same employer on a fixed-term agreement, does not mean that employment agreement with probation period cannot be concluded with the plaintiff because she was offered the job where she had not worked before; and
• that starting employment on an open-end agreement on the jobs where the petitioner had not worked before can be conditioned by the working requirements to agree a probation period according to Article 36, paragraph 1 of the Labour Law.

This practically means, as we have already noted, that probation period does not need to be concluded only for the first employment, but the employer may contract the probation period with the employee for the job that the employee had not done before, for checking their working capacity to perform the work on such new job.

Conclusion

Having in mind all of the above mentioned, it is clear that the number of repeated probation periods agreed between the employer and the employee depends on each particular case and the job that is subject to employment agreement, i.e., whether the employee had previously performed the same job for the same employer. If they had not and if the employer could not have previously established whether the employee has relevant working and professional capacity for work at the position and/or jobs concerned, probation period may be concluded even if the employee had previously worked for the same employer.

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