Employment law
The Probationary Period: a Freedom to Terminate Earned in Writing and Lost in a Day
The new sales representative was supposed to “prove himself” over three months. Nobody wrote those three months down anywhere, and in the fourth month he is still there. The day management tells him that “the trial has not worked out”, it discovers there never was a trial: there has been an open-ended contract since day one, and a dismissal procedure it has not followed.
1. What probation is for, and what it is not
Boubacar Sidibé runs Sikasso Agro-Équipements, a distributor of agricultural equipment with thirty-five employees. For him, every new hire is “on trial” for a few months. For the Labour Code, probation is an exceptional regime, which applies only if it was intended and put in writing.
Sikasso Agro-Équipements and the people named in this article are fictitious: their names serve only as examples.
The probationary period lets each party check, for a limited time, that the engagement suits it: the employer assesses the worker's skills, the worker assesses the job. Its counterpart is simple and powerful: during probation, the contract may be ended without notice and without compensation, by either party.
That freedom is an exception to the ordinary law of termination, which requires notice, notification to the labour inspector and, depending on length of service, a severance payment. Because it is an exception, the Code surrounds it with strict conditions: writing, a capped duration, and a clean end.
The most common mistake
Treating probation as a natural stage of every hiring. It exists only if it has been expressly stipulated in writing. Without that stipulation, the worker is engaged definitively from day one, and any termination falls under the dismissal procedure.
Probation is not the start of every contract. It is a clause, and a clause is written.
2. No writing, no probation
A probationary engagement must be expressly stipulated in writing (Labour Code, article L.30). It may appear in the employment contract itself, or take the form of a specific contract called a probationary contract. Either way, it contains two particulars: the worker's job and occupational category, and the length of the probation.
The fixed-term contract follows the same logic: the implementing decree requires the contract to state the length of any probationary period. A fixed-term contract silent on the point has no probation. See also our article on the fixed-term contract.
The word “expressly” is decisive. Vague wording (“the employee will be assessed in the first months”, “customary trial period”) does not amount to a stipulated probation, for want of a duration and a clear intention. And a document drawn up afterwards, once the worker is in post, does not retroactively create a probation that did not exist on the day of engagement.
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3. How long: the rule, the exception and the ceiling
The length of probation is in principle equal to the notice period. It may, however, be longer, up to six months including renewal, in two cases: to take account of the technique and usages of the occupation, and for workers starting out in their trade.
| Category of staff | Statutory notice | Default length of probation |
|---|---|---|
| Staff paid by the day or by the week | 8 days | 8 days |
| Workers paid monthly | 1 month | 1 month |
| Supervisory staff and equivalent | 2 months | 2 months |
| Managers and senior staff | 3 months | 3 months |
| All categories, by way of exception | - | Up to 6 months, renewal included |
These notice periods apply in the absence of collective agreements or decrees in their place. If your branch collective agreement sets other notice or probation periods (it must deal with hiring conditions, including the length of probation), it is the agreement that applies.
Workers starting out
For workers starting out in their trade, probation runs to a fixed term, calculated from date to date: a three-month probation beginning on 15 March ends on the evening of 14 June, whatever the number of days in each month. Travelling time, where applicable, is not included in the maximum length of probation.
Domestic staff
The implementing decree provides a specific regime for domestic staff: probation is one month, renewable only once; its length must be set in writing at the time of engagement, and its renewal must also be in writing.
Renewal
The Code allows renewal within the six-month ceiling. It does not itself prescribe a form of renewal for ordinary employees, but prudence requires putting it in writing before the first probation expires: it is the only way to prove that probation was renewed, rather than continued without any basis. For domestic staff, that writing is expressly required.
Example. Sikasso Agro-Équipements engages a sales manager, a managerial post, on a three-month probation.
- Statutory notice for a manager: 3 months, so default length of probation: 3 months
- Renewal possible within the ceiling: 6 − 3 = 3 months at most
- Maximum total length, renewal included: 3 + 3 = 6 months
- A four-month renewal would take probation to 7 months and exceed the statutory ceiling
The notice period in principle, six months at most, renewal included.
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4. During probation: a full employee
Probation is not an airlock outside employment law. A worker on probation is an employee, and almost all the rules apply to him.
Work performed during probation must be paid at the rate of the occupational category corresponding to the job for which the worker was engaged. A “probation wage” below the category minimum is therefore unlawful.
The pre-employment medical examination must take place before hiring or, at the latest, before the end of the probationary period (Social Welfare Code, article 43). Probation therefore also marks the final deadline for that obligation.
A worker on probation must be declared to the National Social Welfare Institute within eight days of starting, like any employee. He is entitled to the services of the inter-company medical centre. And he counts in the establishment's headcount for determining the number of staff delegates and the threshold for setting up a union committee.
The most common mistake
Declaring the worker only at the end of probation, “if he is confirmed”. The movement declaration is due within eight days of any hiring, probation included. An accident during the probation of an undeclared worker may leave the company bearing the cost of the benefits paid by INPS.
On probation does not mean outside the Code.
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5. Ending the contract during probation: free, but not without rules
Articles L.39 to L.59 of the Code (notice, notification to the labour inspector, severance payment, damages for wrongful termination) do not apply, save agreement to the contrary, to probationary engagements (Labour Code, article L.33). These may be ended without notice and without either party being entitled to compensation.
Three limits nonetheless remain. The first lies in the words “save agreement to the contrary”: if your collective agreement or the contract itself provides a notice period or compensation during probation, those clauses apply. The second concerns travel costs: where the contract is ended during or at the end of probation, the return journey of a worker relocated by the employer is paid by the employer. The third is general: the freedom to terminate does not allow termination on discriminatory grounds or because of the worker's trade union activity, which the Code forbids taking into account in any dismissal decision.
Although the law does not require it, give notice of termination in writing and date it. It is the only way to show that it occurred before probation ended, and that date is exactly what will be argued over in a dispute.
The most common mistake
Ending the contract the day after expiry, believing it is still within probation. A three-month probation starting on 15 March ends on 14 June. A termination notified on 15 June comes after probation: it is a dismissal.
During probation, you part without notice. The day after it ends, you dismiss.
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6. After probation: definitive engagement, and its retroactive effects
Continuing the service after probation has expired, without renewal, amounts to concluding an open-ended contract taking effect on the date probation began. There is therefore no need to “confirm” the worker in writing: his presence the day after expiry is enough to confirm him.
On definitive engagement, the probationary period, renewal included, counts towards the rights attached to length of service in the undertaking: seniority, leave, seniority bonus, severance payment.
Example. A storekeeper is engaged on 1 February with a one-month probation, not renewed. He stays in post, then is let go on 10 March because “probation did not work out”.
- End of probation: the evening of 28 February
- Presence beyond 28 February without renewal: open-ended contract, effective 1 February
- The termination of 10 March is therefore a dismissal, requiring notification to the labour inspector and written, reasoned notice
- Notice for a monthly-paid worker, not respected: 1 month's salary, i.e. XOF 150,000
- Compensation for procedural defect, absent written reasoned notice: up to 1 month, i.e. XOF 150,000
- Minimum cost, excluding damages for wrongful termination: 150,000 + 150,000 = XOF 300,000
On the procedure to follow in such a case, see our article on dismissal.
Example. A technician served a three-month probation followed by two years and nine months of definitive service. The minimum salary for his job's category is XOF 120,000.
- Length of service counted: 3 months' probation + 2 years and 9 months = 3 years
- Entitlement to the seniority bonus opens, at 3% after three years
- Monthly bonus: 120,000 × 3% = XOF 3,600
- Without counting probation, he would have had only 2 years and 9 months, and no bonus
An unrenewed probation that runs one day over becomes an open-ended contract from day one.
7. What a badly managed probation costs
Breaches of the rules on pay during probation and on counting probation towards length of service are punishable by a fine of XOF 10,000 to 50,000, raised to XOF 20,000 to 100,000 on repeat offence (Labour Code, article L.316). The fine is incurred as many times as there are workers concerned, up to fifty times the maximum rate.
But the main cost, once again, comes from reclassification. Probation that was not written, exceeded or continued without renewal tips the relationship into the ordinary law of dismissal: notice, notification to the labour inspector, compensation for procedural defect and, from one year of service, the severance payment.
Example. Sikasso Agro-Équipements pays its six sales staff on probation 20% below their category minimum, set at XOF 150,000, for three months.
- Monthly shortfall per worker: 150,000 × 20% = XOF 30,000
- Back pay per worker over 3 months: 30,000 × 3 = XOF 90,000
- Total back pay for 6 workers: 90,000 × 6 = XOF 540,000
- Fine incurred at the maximum rate for 6 workers: 6 × 50,000 = XOF 300,000
- Total cost of the “probation wage”: 540,000 + 300,000 = XOF 840,000
A reduced probation wage is not a saving. It is a deferred debt.
A closer look: the probationary contract since the 2017 law
Law no. 2017-021 of 12 June 2017 rewrote article L.30 of the Labour Code. Two contributions deserve mention.
The first is formal: a probationary engagement “may take the form of a specific contract, called a probationary contract”. The employer may therefore sign a stand-alone probationary contract, separate from the definitive contract, provided it states the job, the occupational category and the duration.
The second concerns the consequence of continuation. The text specifies that continuing the service after the probationary engagement expires, without renewal, amounts to concluding an open-ended contract taking effect on the date probation began. That retroactivity is what makes the error costly: seniority, leave and payments are calculated from day one.
Remember finally that probation is never presumed. Unlike some foreign legislation that sets a default probationary period, Malian law provides none: without a written stipulation, there is no probation at all.
Key takeaways in 6 points
- Stipulate probation in writing before day one, with the job, the category and the duration: without writing, it does not exist.
- Align its length with the category's notice period, never exceeding six months including renewal.
- Put any renewal in writing before the first probation expires.
- Pay the worker on probation at his category rate, declare him to INPS within eight days and arrange the medical examination before probation ends.
- Give written, dated notice of any termination before the last day of probation.
- Remember that probation continued without renewal becomes an open-ended contract from its first day, and counts towards length of service.