The probationary period is the initial period of employment during which either party may terminate the contract with only five days' notice. The Labor Code defines it as the first three months, and it may be shortened or waived by written agreement. During the probationary period, the notice-and-meeting dismissal procedure does not apply, because it only begins after the probationary period ends.
This page shows how long the trial period lasts by contract type, when it cannot be waived at all, and what remains mandatory even during it.
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Article 142 clearly states that the first three months of employment are considered a probationary period. This is the rule for an open-ended contract and applies even if the parties do not specify anything.
| Type of contract | Duration of the test | Article |
|---|---|---|
| Unspecified time | The first three months, even before they were written | 142 |
| Deadline set | Up to three months, only if it's written. | 150 |
Article 150 requires the parties to specify in writing the probationary period, which must not exceed three months. This is the main difference between the two types. In an open-ended contract, the probationary period is imposed by law; in a fixed-term contract, it arises solely from the contract.
Article 142, paragraph 2, allows the probationary period to be reduced or eliminated by written agreement or by collective bargaining agreement. It cannot be extended beyond three months.
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There is only one exception, but it is often encountered. The test is not met when the same parties have previously entered into an employment contract whose object was the performance of the same work.
An employee worked six months on a seasonal contract as a waiter. The following year he returned to the same position under a new contract. The probationary period cannot be applied because the job is the same. If the employer dismisses him within three months relying on the probationary period, the dismissal remains subject to challenge.
The same rule applies when an employee moves from a fixed-term contract to an open-ended contract for the same job, or when they return after a short break.
Article 142, paragraph 3, states explicitly: During the trial period, either party may terminate the contract by notifying the other party at least five days in advance.
The deadline applies equally to both the employer and the employee. There is no longer deadline for one party and shorter deadline for the other.
The law does not explicitly state it, but the burden of proof falls on the person who claims to have given notice. Oral notice cannot be proven, so in practice it is always given in writing and with a signed acknowledgment of receipt.
The code does not provide for suspending the probationary period during temporary disability. If an employee is absent for two weeks with a doctor's note, the probationary period ends anyway on the ninety-first day. When the employer actually evaluates the employee, the only option is to terminate the employment, not to extend the probationary period.
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This is why the probationary period has real value for the employer, and why its absence costs.
Article 144 initiates the procedure with the words following the probationary period. Thus, the preliminary meeting with 72 hours' notice, the presentation of reasons, and the written decision within 48 hours to one week do not apply during the probationary period.
Similarly, Article 143 prescribes graduated notice periods only after the probationary period. Therefore, during the probationary period the notice remains five days, regardless of how long the employment relationship has lasted up to that point.
Note: The failure to mention the probationary period in a fixed-term contract does not eliminate it, because it is provided for by law. In a fixed-term contract it removes it entirely. In that case, notice given within three months follows the full procedure of Article 144, and failure to comply incurs two months' pay.
The trial facilitates the termination of the contract. It does not suspend any other obligation.
Resignation during the probationary period cannot be based on a prohibited ground. Section 146 deems the termination without reasonable cause when it is carried out for discriminatory reasons, for union membership, or because the employee has fulfilled a legal obligation.
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No action is required. The relationship continues automatically and the contract enters the ordinary regime.
In a fixed-term contract, Article 150 adds a clarification. If the contract is not terminated during the trial period, that time is included in the contract's duration. Thus, the trial period does not extend the agreed term.
From the ninety-first day, two things change. The notice period becomes two weeks to three months depending on years of service, and separation requires the prior meeting under Section 144.
The first three months of employment, pursuant to Article 142. It may be shortened or waived by written agreement, but it may not be extended beyond three months.
In an open-ended contract, it arises from law even without being written. In a fixed-term contract, it must be provided in writing; otherwise, it does not exist.
Five days, the same for the employer and the employee, according to Article 142, paragraph 3.
Yes. The Section 144 procedure only begins after the probationary period. However, the five-day notice remains mandatory.
No, when the previous contract had as its object the performance of the same work.
The code does not provide for suspension. The trial ends on its own schedule, regardless of any absences.
Yes, from the first day of employment and on the actual salary. The proof does not change any reporting or payment obligation.
No. The longevity award requires that the relationship have lasted no less than three years, according to Article 145.
Read also: Types of contracts and when the term becomes indefinite
