TST upholds automatic renewal of the probationary contract: but a missing detail in the clause can be costly
The 4th Panel ruled that extending a probationary contract can be tacit, with no new signed document, as long as the possibility was already provided for in the original contract and the total does not exceed 90 days.
On the docket: the 4th Panel of Brazil's Superior Labor Court (TST) upheld, in a ruling on embargos (a motion for clarification) concluded on September 10, the validity of a probationary contract that began with a 45-day term and was extended to a total of 89 days, without the company formalizing a new document at the time of the extension. The case involves Innovapharma Brasil Farmacêutica Ltda. (case RR-0000584-22.2025.5.18.0016) and was reported by Justice Alexandre Luiz Ramos. The Regional Labor Court had held that an extension required a predetermined end date set out in the contract itself; the TST disagreed: according to the panel, "the extension can be tacit or express, as long as there is a contractual provision" authorizing it, and it is not necessary to fix in advance the exact length of the extended period, subject only to the 90-day cap set by Article 445 of the CLT. The opposing party's embargos were rejected by the same 4th Panel, presided over by Justice Ives Gandra Filho.
The TST has been addressing the issue from more than one angle in recent weeks: in a related precedent, the Court had already reaffirmed the opposite rule: a probationary contract with no extension clause automatically converts into an indefinite-term contract if the employment relationship continues past the initial term. Read together, the two rulings point to the same takeaway: what decides the outcome is not the existence of a formal amendment for each extension, but the wording of the probationary contract's original clause.
This lands squarely on the radar of anyone handling HR administration and hiring paperwork: probationary contracts are routine at any hiring volume, and the company's standard wording, often an inherited template, copied for years without review, is what determines whether a verbal extension is valid or whether the entire contract can be reclassified as indefinite-term, with all the effects that carries in a termination (notice period, the 40% FGTS severance fine, among others). The risk shows up precisely where it is least examined: in the probationary-contract template already in use, not in a one-off day-to-day decision.
We use technology and Artificial Intelligence to map this kind of gap directly in the contract templates a company already uses, before it surfaces as a challenge during a termination. If you cannot say today whether your company's probationary-contract template would survive that test, Nexus's free diagnostics (5 minutes) are a good place to start.
Has your company reviewed, in recent years, the extension clause in the probationary-contract template HR administration uses today?