Employment after the end of the probationary period

I have heard several issues of employment relations during probationary period. Today, I would like to choose one of them for a brief discussion in this text.

The issue for discussion in this text cannot be explained in a few words. Hence, I would like to explain it as follow. The parties (employer and worker) to the employment contract of unspecified duration (UDC) agree to have three-month probationary period for a position as office worker. A clause in the contract provides that during the probationary period, either the employer or worker has the right to unilaterally terminate the contract at any time provided that the party who intents to terminate the contract during the probationary period serves seven days prior notice of such intention to the other party. The contract further states that employer must notify employer at least seven days prior the expiry date of the probationary period whether the worker has passed or failed the probation. The probationary period elapses, however the employer has not confirmed the status of the worker and the employment relation continues without any change.

Regarding the above case study, I have found that Article 68 of the Labor Law is relevant and that it can provide resolutionthereto. Article 68 of the Labor law read: 

“A contract for a probationary period cannot be for longer than the amount of time needed for the employer to judge the professional worth of the worker and for the worker to know concretely the working conditions provided. However, the probationary period cannot last longer than three months for regular employees, two months for specialized workers and one month for non-specialized workers. The round travel costs incurred by a worker during the probationary period when working far from his habitual residence are to be covered by the employer.”

Based on above article, I have observed that there are 2 main features of the probationary period under the Labor Law of Cambodia. Firstly, probationary period is used to allow employer to understand whether a worker is qualified or fit with the assigned position and to allow worker to know the real working conditions of his or her workplace. Secondly, since either party can terminate the employment relation at any time during the probationary period, the Labor Law fixes the maximum period of probation in order to avoid any unfairly long-term probationary period. According to Article 13 of the Labor Law, rules on probationary period provided under the Article 68 as mentioned above has a nature of public order or compulsory implementation. Hence, private agreement in contrary to this compulsory rule is invalid. The rules of Article 68 replace the private agreement and apply to the said case.

If I apply the above rules to resolve the case study mentioned above in this text, I have noticed that the probationary period for office worker cannot be longer than 3 months. Although the employer fails to confirm the status of the worker (whether the worker has successfully passed or failed the probation) within seven days prior to the expiry of probationary period or as required in similar nature by the employment contract, the worker is considered passing the probationary period. The rules applying to employment relation during probationary period cannot be used since the worker-employer relationship becomes definite one.

This text is not legal advice or opinion.

Categories Employment and Labor Laws

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