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Probationary Period Following a Promotion

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A noteworthy Industrial Tribunal case, Case 3000/CA, revolved around a former employee, of Pizza by Luca, who started off her employment relationship with the employer on an indefinite contract. The employment was for role of a cashier, and to work on a part-time basis. The contract regulating this employment relationship commenced on the 10th of September 2009 and was terminated on the 18th of July 2011. On that same day, that is, on the 18th of July 2011, the parties signed another contract of employment whereby the same employee was engaged as an accounts clerk. In contrast to the first employment contract, this employment post was a fixed term one.

This second employment relationship was terminated after four months of employment. Termination of the contract was sought by the employer during the probation period of the second contract.

At this point it is worth highlighting the main elements of probation. The probation is an established period at commencement of employment during which the employee is assessed by the employer for his/her suitability for the job and the employee decides whether he/she wants to continue his/her employment in that particular job. During probation either party may terminate the employment without assigning any reason, provided that one week notice is given if the employment has exceeded one month. The whole probationary period is payable with the rate of wage agreed, that must not be lower than what is provided by law. The length of this period is generally set at six months for general posts and at twelve months for executive level posts of employment. The probationary period cannot be extended beyond the maximum period allowed by law. Where the employer and the employee agree for a shorter period, such period is binding by law and can only be extended up to the maximum limit contemplated by law if both parties agree to do so.

The main concern in this case was whether this is tantamount to a wrongful termination of the contract of employment by the employer. In simpler terms, whether or not the second employment contract should have had a probationary period. Given that the parties were the same and that the contracts were back to back, a legitimate argument raised was that the second employment contract should not have prescribed a probationary period of employment. The Industrial Tribunal noted that despite these elements (a back to back contract between the same parties), the employment post was of a different nature, and thus forming a different contract of service. On this point, it was concluded that the termination was in line with Maltese industrial and employment regulations.

One may conclude that this case clarifies the point that a promotion may bring about a probationary period of employment. One can safely say that this is logical because the employee may be assessed by the employer for his/her suitability for the new post being given to him/her, while the employee may decide whether he/she wants to continue his/her employment in that particular post.

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