Table of Contents
- Intro
- Dismissal in the trial period: what can and can't the company do
- To claim unpaid overtime
- Is it legal to record work conversations as evidence?
- Black payments and lack of contribution: what it means for the worker
- Real case
- Summary: rights and evidence
- Frequently asked questions
- Conclusion
1. Introduction
To be fired during the trial period does not mean that the company is free of any obligation. It is common to think that, by not exceeding that period, the worker stays. «with nothing». But if during this working relationship, unpaid overtime has been done or some of the black salary has been received, these amounts remain refundable, whether or not the worker has fixed status in the company.
2. Dismissal in the trial period: what can and can't the company do
During the probationary period, either party may terminate the employment relationship without the need to justify cause or pay compensation, provided that the probationary period has been validly agreed in writing and within the established time limits legally or conventionally. This is the case, for example, when the worker is informed that «has not exceeded the test period».
However, this freedom of withdrawal does not cover everything. If the dismissal during the trial period actually covers a retaliation, for example, because the worker has claimed the payment of overtime or has reported irregularities, it may be challenged, and the company is still obliged, in any case, to liquidate all that is adduced to the worker.
3. To claim unpaid overtime
The right to be paid for all overtime worked does not depend on whether the contract has come to a successful conclusion or has been extinguished in a probationary period. As long as there is a working relationship, all hours worked above the agreed day must be paid in accordance with the terms of the collective agreement or the contract.
To claim unpaid overtime, it is essential to prove that they were done. The most common tests are:
- Time records (mandatory for the company in accordance with the rules in force).
- E-mails or messages with sending times that show the actual day.
- Witnesses, as coworkers.
- Recording of conversations in which overtime is recognized.
These amounts can be claimed by means of a amount claim, with an overall period of one year from the date of their expiration (and up to four years in certain special cases).
4. Is it legal to record work conversations as evidence?
One of the most frequent doubts is whether a boss or partner can be recorded without his knowledge. The answer, with nuances, is yes: if the worker is part of the conversation (i.e. it is not a question of listening to third parties without their knowledge), recording that conversation is generally lawful and can be used as evidence in a judicial procedure.
The important thing is that the recording is limited to conversations in which the worker himself is directly involved, and that its content is relevant to prove the facts that are intended to prove, such as the performance of overtime, black payments or pressure not to claim rights.
5. Black payments and lack of contribution: what it means for the worker
When part of the salary is paid «in black»In other words, without being reflected on the payroll or contributing to social security, the worker is being harmed on several fronts: lower regulatory basis for benefits (unemployment, disability, retirement) and less protection in the event of dismissal, as the compensation is calculated on the official wage, not on the actual one.
These situations may be brought to the attention of the Labour Inspectorate, which has the power to investigate and punish the company, as well as to require the regularization of unentered contributions. This type of irregularities is, in fact, very common in cases of false self-employed and other formulas used to reduce labour costs illegally.
6. Real case
The video sets out the case of a worker fired for not exceeding the trial period, who had recorded his work conversations for months, accumulating a lot of extra hours not reflected on payroll. After knowing that there were recordings, the company has offered to pay for those overtime, although not yet specified. The case also includes payments in black, without the corresponding social security contribution.
7.Summary: rights and evidence
| Status | Workers' rights | Key test |
|---|---|---|
| Dismissal in the test period | No compensation required except for retaliation or fraud | Communication of withdrawal |
| Unpaid overtime | Right to full payment | Time registration, mail, recordings, witnesses |
| Recording of own conversations | Admissible as judicial evidence | The worker must be part of the conversation |
| Payments in black | Right to complain and to report to the Labour Inspectorate | Comparative between payroll and actual payments |
8. Frequently asked questions
Can I claim if my company doesn't pay me overtime?
Yeah. You have the right to be paid all the overtime paid in accordance with your collective agreement or contract. You can claim them for the last 12 months, or up to 4 years in special cases.
Can you record a boss without telling him?
If the worker participates in the conversation, yes, and that recording can be used as evidence in a trial. What is not allowed is to record other conversations in which the worker does not intervene.
What if I get fired on trial but you owe me overtime?
Dismissal in a probationary period does not eliminate the right to collect what is owed. The company must settle outstanding wages and overtime regardless of the reason for the termination of the contract.
What can I do if part of my salary was paid in black?
You can claim these amounts and also report the situation to the Labour Inspectorate, which can punish the company and require the regularization of unentered contributions.
9. Conclusion
A trial dismissal does not close the door to claim what is legitimately due: unpaid overtime, amounts paid in black or any other wage debt. Documenting the situation well, with your own records, e-mails or recordings, is the key to the success of this claim. In Leynver Abogados we help workers to collect such evidence and to submit the appropriate amount claim.
