Considerations concerning the prohibition of use of the probation period in the individual labor contract (according to the provisions of article 33 of the Romanian Labor Code)

• Author: Ana Vidat
• Position: Law Department, Bucharest University of Economic Studies; Lawyer, member of the Bucharest Bar Association; Romania, ana.vidat@yahoo.com.
• Pages: 164-170

Considerations concerning the prohibition of use of the probation

period in the individual labor contract (according to the

provisions of article 33 of the Romanian Labor Code)

Associate professor Ana VIDAT1

Abstract

The probationa ry period is the most app ropriate way of verifying the professiona l

skills - among the possible ones - given that during the p erformance of the individual labor

contract, the skills of the employee ca n be tested. The objective of this stud y is to analyze

the ban on the use of the proba tion period in the context of art. 33 of the Labor Code. Thus,

we propose to discuss r elatively the employer's ability to employ probationer s through

successive employment in a maximum of 12 months. We a ppreciate that it is useful to

establish the pr actical implications of the legal provisions outlined above - in the context in

which the pr obationary period is the most useful way of p rior checking of the persons

applying for employment.

Keywords: individual employment contract; proba tion period; denial clause; verifying

professional skills; successive hiring.

JEL Classification: K31

1. Introductory issues

A). a). In accordance with the provisions of art. 29 para. 2 of the Labor

Code, the ways in which the pre-qualification of the professional and personal

skills of the persons applying for employment is established by the applicable

collective labor contract, the status of personnel – professional or disciplinary –

and by the internal regulation, insofar as the law does not provide otherwise.

For the purpose of checking the employee's skills, upon the conclusion of

the individual labor contract, a probation period2 – a waiver clause3 – which will be

the object of the information provided in art. 17 par. 2 letter n) of the Labor Code.

1 Ana Vidat - Law Department, Bucharest University of Economic Studies; Lawyer, member of the

Bucharest Bar Association; Romania, ana.vidat@yahoo.com.

2 The duration of th e probationary period is regulated differently, as follows: in the case of an

individual employment contract concluded for an indefinite duration, according to art. 31 par. 1 of

the Labor Code, the probation period shall be no more than 90 calendar days for the execution

functions (qualified or unqualified) and no more than 120 calendar days for the managerial

positions; when talking about an individual contract of employment concluded on a fixed term, the

legal regulation contained in art. 85 of the Labor Code stipulates the following terms: 5 working

days for an individual work contract less than 3 months; 15 working days for a duration of the

individual work contract between 3 and 6 months; 30 working days for an individual contract of

employment longer th an 6 months; 45 working days in the case of employees in management

positions for a period of individual work contract longer than 6 months.

3 To be seen I.T. tefnescu, Tratat teoretic i practic de drept al muncii, fourth edition, Universul

Juridic Publishing House, Bucharest, 2017, p. 315-321.