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On 24 March 2026, the\u00a0Supreme Court of the Republic of Slovenia<\/strong>\u00a0delivered judgment\u00a0VIII Ips 28\/2025<\/strong>, holding that an employer\u00a0may not<\/strong>\u00a0lawfully terminate an employment contract\u00a0for business reasons (poslovni razlog)<\/strong>\u00a0while the employee is still serving a probationary period. The ruling provides much-needed clarity for an issue that had previously been interpreted inconsistently \u2014 but it also raises important systemic and practical questions for both employers and employees operating under Slovenian labour law.<\/p>\n\n\n\n In our daily practice as a Slovenian employment law firm based in Ljubljana<\/strong>, we frequently advise companies on workforce restructuring and represent employees in unlawful-dismissal disputes. The interaction between probationary periods and the various dismissal grounds is one of the more frequently misunderstood areas of the Slovenian Employment Relationships Act (ZDR-1)<\/strong>. Below we set out the legal framework, summarise the Supreme Court’s reasoning, and then offer a measured professional critique<\/strong> \u2014 identifying points where, in our view, the decision sits uneasily with the broader civil-law system, basic commercial reality, and even with the protective rationale invoked by the Court itself.<\/p>\n\n\n\n Quick reference<\/strong><\/p>\n\n\n\n <\/p>\n\n\n\n A probationary period<\/strong> (“poskusno delo”) is a contractual mechanism that allows the employer to verify, within a pre-defined period (no more than six months<\/strong>), whether the employee is suitable for the role. The institute is regulated in Article 125 of the Employment Relationships Act (ZDR-1)<\/strong> and is agreed in the employment contract itself.<\/p>\n\n\n\n With respect to termination during probation, Article 125 ZDR-1 provides:<\/p>\n\n\n\n <\/p>\n\n\n\n The general dismissal regime<\/strong> is set out in Article 89 ZDR-1<\/strong>, which lists, inter alia<\/em>, the business reason<\/strong> (“poslovni razlog”) \u2014 i.e. termination of the need for the work the employee performs, due to economic, organisational, technological, structural or similar circumstances.<\/p>\n\n\n\n The interpretive question put to the Supreme Court was therefore narrow but consequential: does Article 89 ZDR-1 (business reasons) apply\u00a0cumulatively<\/strong>\u00a0alongside the special grounds in Article 125, or is Article 125 an\u00a0exhaustive<\/strong> (numerus clausus) list of permissible dismissal grounds during probation?<\/p>\n\n\n\n The claimant and the defendant entered into an indefinite-term employment contract on 4 October 2022 with a six-month probationary period (17 October 2022 to 16 April 2023). On 2 March 2023 \u2014 while the probationary period was still running<\/strong> \u2014 the employer served the employee with an ordinary notice of termination on business grounds<\/strong>, with a 15-day notice period; the employment ended on 25 March 2023.<\/p>\n\n\n\n The Labour and Social Court of first instance found the dismissal unlawful and set it aside. The Higher Labour and Social Court (VDSS, Pdp 64\/2025) upheld that decision. The Supreme Court admitted the revision on the question whether termination on business grounds is lawful during the probationary period.<\/p>\n\n\n\n The Supreme Court dismissed the revision<\/strong> and affirmed<\/strong> that the dismissal was unlawful. Its key arguments were:<\/p>\n\n\n\n The Court’s reasoning is reasonable on its face \u2014 and the holding is easy to apply in practice. We nevertheless believe that, on closer inspection, several aspects of the decision sit uneasily with the broader civil-law framework<\/strong>, with commercial reality<\/strong>, and even with the protective rationale<\/strong> invoked by the Court itself. Below we set out six points that, in our view, deserve further attention in any future debate on this issue (or in any potential legislative review de lege ferenda<\/em>).<\/p>\n\n\n\n The most direct objection to the judgment is linguistic. In Slovenian \u2014 as in most European languages \u2014 the word “tudi<\/strong>” (“also”) typically signals\u00a0inclusion<\/strong>\u00a0and\u00a0addition<\/strong>, not exhaustive limitation. If the legislator had intended to provide a\u00a0closed list<\/strong>\u00a0of permissible dismissal grounds during probation, the natural drafting choice would have been\u00a0“only”<\/em>,\u00a0“exclusively”<\/em>, or \u2014 as in the previous\u00a0ZDR<\/strong>\u00a0\u2014 an\u00a0express prohibition<\/strong>\u00a0of any other dismissal ground.<\/p>\n\n\n\n This is significant because the previous Article 125 ZDR contained precisely such an express prohibition<\/strong>: paragraph 5 stated that the employer could not<\/strong> dismiss the employee during probation, save for the listed exceptions. When the legislator enacted ZDR-1 in 2013, it dropped the express prohibition<\/strong> and replaced it with the new wording that uses “tudi”. A systemic reading of this textual change can plausibly support the opposite<\/strong> of the Court’s conclusion: by removing the express prohibition and inserting “also”, the legislator may well have opened<\/strong>, rather than closed, the door to the general regime of Article 89.<\/p>\n\n\n\n The Court relies on the explanatory memorandum (EPA 728-VI) to argue that the legislator’s “main purpose” was a shift from extraordinary to ordinary dismissal for probation failure. That is fair \u2014 but it does not exclude a broader simultaneous purpose of greater flexibility<\/strong>, which fits the overall spirit of the 2013 reform.<\/p>\n\n\n\n The most striking systemic consequence of the judgment is paradoxical<\/strong>: an employee on probation enjoys stronger protection against business-reason dismissal<\/strong> than an employee on an indefinite-term contract without probation<\/strong>.<\/p>\n\n\n\n In an ordinary indefinite-term contract, an employer facing a genuine business reason (loss of a key client, restructuring, downturn) may lawfully terminate. Under the judgment, the same employee, if bound by a probationary clause, cannot be dismissed for the very same reason<\/strong>. This turns the purpose of probation on its head<\/strong>. The institute was conceived as a more flexible<\/strong> framework for the early phase of the employment relationship: short notice periods, faster exit in case of unsuitability, lower costs for both sides. The Court’s reading converts probation, at least in part, into a rigid<\/strong> regime more demanding than ordinary employment.<\/p>\n\n\n\n Slovenian general contract law recognises that a fundamental change of circumstances<\/strong>, which renders performance under the original terms impossible or unreasonably onerous, justifies termination or adaptation<\/strong> of the contract (Articles 112\u2013115 of the Code of Obligations; the rebus sic stantibus<\/em> doctrine). The “business reason” in employment law is, in essence, a specialised expression<\/strong> of this general logic: the economic justification for continuing the contract on the original terms has fallen away.<\/p>\n\n\n\n The judgment effectively switches off<\/strong> this general civil-law logic for a window of up to six months \u2014 irrespective of the severity of the change in circumstances (loss of a critical contract, regulatory change, market collapse). From a system-coherence perspective, this is an anomaly that is hard to defend.<\/p>\n\n\n\n The principle of good faith and fair dealing<\/strong> (Article 5 of the Code of Obligations) and the principle of economy are part of the broader normative framework that applies to employment relationships as well. Under the judgment, an employer that no longer has economic need for a probationary employee is required to maintain the employment relationship as a formal fiction<\/strong> \u2014 with all the financial obligations (salary, social contributions, taxes) \u2014 until probation expires.<\/p>\n\n\n\n For a small or medium-sized employer<\/strong> experiencing a serious economic shock, that obligation can be existentially significant<\/strong>. The defendant in the case raised exactly this point. The Court answered with a relatively general observation that “six months is a short period”. For many employers, that response is practically unconvincing<\/strong> \u2014 particularly where probation periods overlap with structural challenges affecting the entire business.<\/p>\n\n\n\n The Court rejects the proportionality and freedom-of-business arguments under Article 74 of the Slovenian Constitution by invoking the brevity of the probationary period. The reasoning is somewhat formulaic<\/strong>.<\/p>\n\n\n\n The freedom to conduct business includes the right of the employer to\u00a0adjust the size and structure of its workforce<\/strong> to actual economic conditions. An\u00a0unconditional six-month<\/strong>\u00a0obligation to maintain a particular employment relationship \u2014 irrespective of how serious the economic shock \u2014 is not necessarily proportionate, especially when the same economic ground would justify dismissing a long-tenured worker protected by the social-state principle (Article 2 of the Constitution).<\/p>\n\n\n\n In extreme cases (the closure of a business unit, the loss of a key client by a small employer), the obligation to maintain the relationship can threaten the viability of the employer itself<\/strong> \u2014 which ultimately harms the other employees too.<\/p>\n\n\n\n A particularly telling argument is one raised by the employer<\/strong> before the Supreme Court. If the employer can no longer use the objective business reason<\/strong>, but still has to part with the employee, the only remaining route under Article 125 is dismissal for unsuccessful completion of probation<\/strong> (paragraph 4). That ground is subjective<\/strong> and carries a professional stigma<\/strong>: it formally records that the employee was found unsuitable for the role.<\/p>\n\n\n\n The Supreme Court does not satisfactorily address this point. The practical effect of the judgment is therefore a perverse incentive<\/strong>: where the employer could, transparently, have invoked an objective<\/strong> economic reason (with a clean record for the employee, and statutory severance), it will now typically be pushed toward a subjective<\/strong> ground that burdens the employee<\/strong> in the search for the next position. The “protection” intended by the Court may, in some cases, harm the very employee it is meant to protect<\/strong>.<\/p>\n\n\n\n The Court treats Article 125 as a\u00a0lex specialis<\/em>\u00a0that\u00a0displaces<\/strong>\u00a0Article 89. Yet Article 125 contains\u00a0no express exclusion clause<\/strong>. It positively lists certain dismissal options (notably the probation-failure ground, which is a\u00a0sui generis<\/em> institute), which is\u00a0logical<\/strong>, since the general regime does not know that ground. Such positive enumeration\u00a0does not necessarily<\/strong>\u00a0entail exhaustive exclusion of the general grounds.<\/p>\n\n\n\n The maxim expressio unius est exclusio alterius<\/em> is widely used, but it is not unlimited: it should apply where inclusion of additional elements would clearly<\/strong> contradict the purpose of the provision. Here \u2014 where inclusion of the business reason would in fact track the broader system<\/strong> and basic economic logic \u2014 the maxim is far from compelling.<\/p>\n\n\n\n After\u00a0VIII Ips 28\/2025<\/strong>, any employer planning a restructuring or business-related dismissals must\u00a0carefully verify <\/strong>whether any of the affected employees are still in their probationary period. If they are, the dismissal will be\u00a0unlawful<\/strong>, exposing the employer to:<\/p>\n\n\n\n In practice, this means that any organisational change should be synchronised<\/strong> with the expiry of probationary periods, that \u2014 in case of doubt \u2014 the employer should wait<\/strong> for probation to end before issuing a business-reason dismissal, and that alternative grounds<\/strong> (e.g. a properly substantiated extraordinary dismissal, where the conditions are met) should be considered carefully.<\/p>\n\n\n\n Particular caution is required for small businesses, start-ups and scale-ups<\/strong>, which routinely use probation and are sensitive to fast-moving business conditions. We recommend proactive legal advice<\/strong> before drafting probation clauses and, even more importantly, before issuing any termination during probation.<\/p>\n\n\n\n An employee who has received an ordinary dismissal for business reasons during probation now has a strong starting position<\/strong> to challenge the dismissal. The judgment establishes \u2014 clearly and at the highest level \u2014 that such a dismissal is unlawful<\/strong> per se<\/em>, regardless of how compelling the employer’s economic reasons may be.<\/p>\n\n\n\n Typical claims include:<\/p>\n\n\n\n The deadline for judicial protection (30 days<\/strong> from service of the dismissal under Article 200 ZDR-1) is short; an immediate consultation with an employment lawyer in Slovenia<\/strong> is therefore essential.<\/p>\n\n\n\n Judgment VIII Ips 28\/2025<\/strong> delivers a clear rule: ordinary dismissal for business reasons is unlawful during the probationary period<\/strong>. From the perspective of protecting the employee in this specific phase, the rule is understandable and easy to apply in practice.<\/p>\n\n\n\n At the same time \u2014 as we have argued \u2014 the decision opens significant systemic questions<\/strong>. The narrow reading of the word “also” (tudi<\/em>) is linguistically counterintuitive; the systemic outcome \u2014 that probationary employees enjoy stronger<\/strong> protection against economic dismissal than indefinite-term employees \u2014 is hard to reconcile with the very purpose of probation; and the practical consequences may, in some cases, disadvantage the employee<\/strong> by funnelling employers towards a stigmatising “probation failure” ground.<\/p>\n\n\n\n A future amendment of ZDR-1 could usefully address this question explicitly<\/strong> \u2014 either by making the exclusion express, or, more sensibly, by permitting business-reason dismissal during probation<\/strong> under tailored conditions that preserve the employee’s special protection. Until then, both employers and employees should approach the topic with timely and well-informed legal advice<\/strong>.<\/p>\n\n\n\n Our law firm in Ljubljana, Slovenia<\/strong> advises on the full spectrum of Slovenian labour and employment law<\/strong>: we counsel employers on lawful restructuring and the preparation of dismissals, represent employees in unlawful-dismissal disputes, and draft employment contracts (including probation clauses) so as to minimise legal exposure for both sides.<\/p>\n\n\n\n If you have received a dismissal during your probationary period<\/strong>, or are planning to issue one<\/strong>, please be aware that the time window for action is short<\/strong> (30 days for the employee to seek judicial protection). An early consultation with a Slovenian employment lawyer<\/strong> can have a decisive impact on the outcome.<\/p>\n\n\n\n This article is informational and does not substitute for individual legal advice. For an assessment of your specific situation, please contact a qualified Slovenian employment lawyer.<\/em><\/p>\n<\/blockquote>\n\n\n\n Keywords \/ practice areas:<\/strong> Slovenian employment lawyer, Slovenian labor lawyer, employment law Slovenia, law firm Ljubljana, attorney Ljubljana, probationary period Slovenia, dismissal for business reasons, ZDR-1, Slovenian Supreme Court, unlawful dismissal Slovenia, reinstatement, severance pay Slovenia.<\/p>\n\n\n\n Related topics on our blog:<\/strong> Ordinary and extraordinary dismissal under ZDR-1 \u00b7 Judicial dissolution of an employment contract \u00b7 Fixed-term employment contracts in Slovenia \u00b7 Severance pay under Slovenian law \u00b7 Restructuring and collective dismissals.<\/p>\n","protected":false},"excerpt":{"rendered":" Introduction On 24 March 2026, the\u00a0Supreme Court of the Republic of Slovenia\u00a0delivered judgment\u00a0VIII Ips 28\/2025, holding that an employer\u00a0may not\u00a0lawfully terminate an employment contract\u00a0for business reasons (poslovni razlog)\u00a0while the employee is still serving a probationary period. The ruling provides much-needed clarity for an issue that had previously been interpreted inconsistently \u2014 but it also raises […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[1],"tags":[12,114,117,139,45,142,116,119,113,115],"class_list":["post-1226","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-immigration-lawyer","tag-law-firm-in-slovenia","tag-law-firm-ljubljana","tag-law-firm-slovenia","tag-lawyer-in-slovenia","tag-lawyer-slovenia","tag-legal-services-slovenia","tag-slovenian-civil-law-firm","tag-slovenian-law-firm","tag-slovenian-lawyer"],"aioseo_notices":[],"featured_image_src":{"landsacpe":false,"list":false,"medium":false,"full":false},"_links":{"self":[{"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/posts\/1226","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/comments?post=1226"}],"version-history":[{"count":2,"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/posts\/1226\/revisions"}],"predecessor-version":[{"id":1229,"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/posts\/1226\/revisions\/1229"}],"wp:attachment":[{"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/media?parent=1226"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/categories?post=1226"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.odb.si\/en\/wp-json\/wp\/v2\/tags?post=1226"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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\n\n\n\n1. Legal framework: probationary period under Art. 125 ZDR-1<\/h2>\n\n\n\n
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\n\n\n\n2. Facts and procedural history<\/h2>\n\n\n\n
\n\n\n\n3. The Supreme Court’s reasoning<\/h2>\n\n\n\n
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\n\n\n\n4. A critical perspective: where the judgment opens questions<\/h2>\n\n\n\n
4.1 The narrow reading of “also” (“tudi”)<\/h3>\n\n\n\n
4.2 An inverted protection: probation as a privilege<\/h3>\n\n\n\n
4.3 Tension with general contract law (Code of Obligations)<\/h3>\n\n\n\n
4.4 Good faith, fair dealing and the principle of economy<\/h3>\n\n\n\n
4.5 The constitutional dimension<\/h3>\n\n\n\n
4.6 The practical paradox: stigma as a side effect<\/h3>\n\n\n\n
4.7 Article 89 vs. Article 125: lex specialis or lex complementaris?<\/h3>\n\n\n\n
\n\n\n\n5. Practical implications<\/h2>\n\n\n\n
For employers<\/h3>\n\n\n\n
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For employees<\/h3>\n\n\n\n
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\n\n\n\n6. Conclusion<\/h2>\n\n\n\n
\n\n\n\nNeed legal advice on Slovenian employment law?<\/h2>\n\n\n\n
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