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Laying off an employee on a probationary period due to the emergency situation

19.03.2020


Due to the emergency situation, my employer is currently unable to assign me any occupational duties. Since I am on a probationary period, my employer terminated my contract because, allegedly, I failed to achieve the goal of my probationary period. However, it is evident that the real reason is a decrease in the work volume and as a person on a probationary period, I was the obvious choice. Should the employer have laid me off, instead?

Answer of the Labour Inspectorate: 

The goal of the probationary period is to evaluate whether the employee’s health, knowledge, skills, capabilities, and personal characteristics correspond to the job requirements. Pursuant to subsection 86 (4) of the Employment Contracts Act, an employer may not cancel the employment contract on a ground that is in conflict with the goal of the probationary period.

All grounds for terminating an employment contract provided in the Employment Contracts Act also apply to employees who are on a probationary period. If the employer cannot continue the employment contract due to economic reasons, as continuing the employment relationship on the agreed terms and conditions has become impossible due to a decrease in work load, the reorganisation of work, or other reasons, it is considered a lay-off under subsection 89 (1) of the Employment Contracts Act.

Decision No. 2-16-9199 of the Supreme Court of Estonia also states that when cancelling an employment contract during the probationary period (subsection 86 (1) of the Employment Contracts Act), the employer shall justify the termination and make sure that it is not in conflict with the goal of the probationary period (subsections 86 (4) and 6 (1) of the Employment Contracts Act). For example, the employer has no right to terminate an employment contract during the probationary period due to not meeting the goal of the probationary period if the reason for the termination was only a breach of contract by the employee or a lay-off. In such a case, the employer has the right to cancel the employment contract for a reason arising from the employee under subsection 88 (1) of the Employment Contracts Act or for economic reasons of the employer pursuant to subsections 89 (1) and 89 (2) of the Employment Contracts Act.

Therefore, when terminating an employment contract, it is necessary to assess the specific reason why the contract has to be terminated. If the reason for cancelling the employment contract is a decrease in work load, which makes it impossible for the employee to continue work, the employee must be laid off. An employee on probationary period must also be laid off in a situation like this. The employer cannot terminate the employment contract pursuant to subsection 86 (1) of the Employment Contracts Act due to not meeting the goal of the probationary period if the actual reason is that the employer cannot provide work to the employee.

If the employer has terminated the employment contract due to not meeting the goal of the probationary period, but should have actually laid off the employee, the employee has the right to dispute the cancellation notice submitted by the employer at a labour dispute resolution body (i.e. the court or labour dispute committee).

Decision No. 2-16-9199 of 1 November 2017 of the Civil Chamber of the Supreme Court is available here: https://www.riigiteataja.ee/kohtulahendid/fail.html?fid=216914151.

 

Read more:

An overview of the articles about the coronavirus on Tööelu.

Frequently asked questions in connection with the coronavirus (teleworking, business trips abroad, lay-offs, holiday without pay).

Photo: Pixabay

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