An agreed waiver of probation binds a fixed-term worker

The Industrial Tribunal, chaired by Doreen Parnis, decided on 17 August 2026 in Tcb Services Ltd vs M.H. that an employee who agreed in writing to a one-year contract without a probation period could not rely on probation to leave early. The tribunal found that he resigned before the agreed term ended, in breach of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta). It ordered him to pay the company €4,106.91 within eight months.

The facts

The employee worked full time as a room attendant on a fixed-term contract running from 13 March 2025 to 12 March 2026. Before he came to Malta he signed a pre-contract stating that there would be no probation period, and the employment contract he signed on arrival excluded probation expressly.

On 17 June 2025 he emailed the company giving a week's notice, and he left on 24 June 2025. The company claimed €4,106.91 as the penalty under article 36(12) of Chapter 452 for leaving before the term expired. The employee argued that probation applies by law to every contract, that he left within it, and that unpaid overtime had left him no choice but to resign.

What the tribunal held

The tribunal first narrowed the dispute. It was told that the complaint of a forced resignation linked to unpaid wages had been taken up by the Department for Industrial and Employment Relations, and the employee's lawyer said the only issue left was the termination during probation. The tribunal therefore decided that issue alone, in a final decision rather than a preliminary one.

The employee argued that article 36(1) and (1A) make probation mandatory, so that a clause excluding it is invalid and the six-month maximum applies. The company argued that it offers pre-contracts without probation to workers still abroad, because obtaining their permits takes a long time and some workers had left during probation soon after arriving. It relied on article 36(1C) and on pacta sunt servanda, the principle that agreements must be kept.

The tribunal held that employment law sets the minimum conditions an employee can enjoy, and nothing stops an employer from offering better ones. The legislator set the probation rules to safeguard employees.

In the tribunal's words: "Li jkollok każ fejn sew min iħaddem u sew impjegat jaqblu li f’kuntratt ta’ impjieg ta’ sena ma jkun hemm l-ebda żmien ta’ prova jista’ faċilment jitqies ta’ vantaġġ għall-impjegat" (a case where employer and employee both agree that a one-year contract of employment will have no probation period can easily be considered an advantage for the employee).

The tribunal found that the employee knew and accepted that there would be no probation. It found that the company had valid reasons, did not hide the exclusion and told him about it before he came to Malta and before it began applying for his permits.

The intention was clear and agreed before the employment contract was signed. When the employee left, no probation period was running, so he breached Chapter 452 by resigning before the agreed term. The tribunal ordered him to pay the €4,106.91 claimed.

Why it matters

An express, agreed exclusion of probation in a fixed-term contract can bind the employee, at least where it was disclosed before recruitment and the employer had a reason for it. An employee who then resigns early cannot treat the first months as a free exit and is exposed to the article 36(12) claim. Lawyers advising workers recruited from abroad should read the pre-contract as closely as the contract itself, and should pursue any unpaid-wage complaint as a separate matter.

Where it sits

Article 36 of Chapter 452 governs probation and the ending of contracts of employment. During probation either party may end the employment without giving a reason, with a week's notice once the employment has lasted more than a month; the employee's reply put this under article 36(14).

A fixed-term contract, by contrast, binds both parties to its end date. Under article 36(12), an employee who leaves before that date without good and sufficient cause owes the employer a sum by way of penalty, which is what the company claimed here.

The decision reads the probation rules as part of the statutory floor of rights. Because they exist to protect the employee, the tribunal treated an agreed exclusion that benefits the employee as valid rather than as contracting out of the Act.

The employee's contrary reading, that probation is imposed by law whatever the parties agree, was the argument the tribunal rejected. The tribunal named no authority and decided on the articles of Chapter 452 alone.

Source

Industrial Tribunal, 2026/3194, 17 August 2026.