Probation
Related Legislation:
Article 36 (1) and Article 41 of the Employment and Industrial Relations Act, 2002, Chapter 452 of the Laws of Malta
1. What is the probationary period established by law?
The EIRA establishes a six month probationary period. However in the case of executive, technical, managerial and administrative posts whose salary exceeds twice the minimum wage a one year probationary period applies.
2. Can the probationary period be more than that stipulated by law?
A one year probationary period applies in the case of executive, technical, managerial and administrative posts whose salary exceeds twice the minimum wage.
3. Can the probationary period be less than that stipulated by law?
The parties may agree to a shorter probationary period. Nevertheless it is not advisable for the employer to do so since certain issues may arise during the probationary period. Employers should make full use of the probationary period to monitor performance and attitude, and also to identify any training requirements.
4. Can the probationary period established by a collective agreement differ from that stipulated by law?
Yes it can differ, but it can only be for a shorter period and cannot exceed the maximum stipulated by law.
5. Can the probationary period be extended?
The probationary period may not extend beyond the six months or one year as the case may be. However in cases where the employee has been engaged on a shorter probationary period than that stipulated by lay (say, 3 months) the employer does have the option – by mutual agreement – to extend the probationary period for a further period which does not exceed the maximum stipulated in Article 36 of the EIRA.
6. Does the probationary period apply to definite period contracts and part time employment?
The law states that the first six months of any employment are probationary without making any distinction between definite and indefinite contracts, part time and full time employment.
7. What happens if the employee is given an employment contract for six months or less?
Since the law states that the first six months of any employment are probationary, if the contract is for six months or less, then the entire period shall be probationary.
8. Does notice period apply if employment is terminated during the probationary period?
If the employee exceeds one month’s employment then one week’s notice will apply to both parties.
9. Is the party terminating employment during the probationary period obliged to give a reason for such termination?
No. The law clearly states that either party may terminate employment without assigning any reason. Therefore it is advisable to stipulate ‘terminated during probation’ on the ETC termination form.
10. If employment is terminated during probation should such termination be put in writing?
It would be advisable for record purposes for the employer to put in writing the fact that employment is being terminated during probation.
11. If an employee is given a promotion does the probationary period apply again?
There is a distinction between a probationary period and a trial period. The difference between new employment and a promotion is that if the employee is unsuccessful during the trial period he/she will not lose their employment but will revert back to their previous position under the same terms and conditions they previously held.
12. Are employees put on probation if there is a transfer of business?
No since the law states that once there is a transfer of business, the employer will assume the previous employer’s rights and obligations and employees will retain seniority rights etc.
13. Once the probationary period expires, does employment have to be confirmed in writing?
The employer is not obliged to give anything in writing upon successful completion of the probationary period. However it is ethical to do so.
14. Are there instances when an employer cannot terminate employment during probation?
The employer of an employee who gets injured during probation cannot terminate his employment prior to the lapse of one year injury leave.
15. Are there instances where the employer may refuse an employee’s resignation during the probationary period?
No. The probationary period allows both parties to terminate the employment relationship.
16. Should notice of termination of employment be given one week before the expiry of the probationary period or can it be given on the very last day?
The law is not clear on the matter however it is advisable for the employer who intends to terminate employment, to tender notice prior to its expiration.
17. What happens if employment is terminated during the probationary period and the same employee is re-engaged? Does the probationary period continue running or does it start afresh?
This depends very much on how much time elapses between termination and re-engagement.
If re-engagement takes places prior to the lapse of six months then it will be deemed to be one continuous period and the probationary period had been interrupted.
However if re-engagement takes place after six months then it will be deemed to be a new employment and the six month or one year probationary period will start afresh.
18. Are employees entitled to sickness and other benefits during the probationary period?
Various Wage Regulation Orders stipulate that employees may only avail themselves of sick leave after the lapse of a specified time period. For example Article 9 (1) of the Construction WRO states that sick leave entitlement starts after the completion of one year’s continuous service. This varies from one industry to another according to its respective WRO.
It is to be noted that irrespective of the entitlement during the probationary period, all benefits accrue as from the first day of employment.
