Employee probation cannot be extended.
MANY employers due to poor management of probation end up unlawfully
extending employees probation arguing that they did not have adequate time to
assess the employees’ performance.
The Labour Act Chapter 28:01 covers probation in Section 12(5), which reads:
“A contract of employment may provide in writing for a single, non-renewable
probationary period of not more than —(a) one day in the case of casual work or
seasonal work; or (b) three months in any other case;
During which notice of termination of the contract to be given by either party may
be one week in the case of casual work or seasonal work or two weeks in any other
case.”
In the cited section of the Labour Act, it is clear that probation cannot be renewed,
and one has to stick to set legal time frames for probation.
In the matter St Giles Medical Rehabilitation Centre v Patsanza (SC 59/18), the
appellant engaged the respondent for a three months’ probation period, which was
extended for a further month when it came to an end.
The employer argued that the respondent’s performance had not been satisfactory
and argued the extra month was to allow the respondent to remedy performance
gaps that had been identified through a performance appraisal.
The matter got to the Supreme Court after an Arbitrator had ruled in favour of the
respondent declaring extension of probation as unlawful.
The Labour Court upheld the Arbitrator’s Award; thus, the employer then
approached the Supreme Court.
The Supreme Court started by giving the purpose of the probation, which is to
function as a time when an employer can evaluate a “potential” employee before
opting to accept him or her as a full-time employee.
“During this period, the employee is assessed and evaluated to determine his
suitability for permanent employment”.
The Court then went to look at whether probation can be extended.
It said “Section 12(5) of the Labour Act [Chapter 28:01] regulates issues of
probation in the workplace. Once a probationary period is given by an employer
then it can only be a “single, non-renewable” period”.
This position was also set out in the case of Kazembe v the Adult Literacy
Organisation SC 173/1994, where the court stated that once a probation period
ends and the employer is dissatisfied with the probationer’s performance, all that
the employer needs to do is to inform him that his services are no longer required
and that would be the end of the matter.
The Court went on further to provide guidance on how a probation contract can be
extinguished and gave two options available to the employer.
It said “There are two ways in which an unsuccessful probationary employee can be
dismissed.
The first is to allow the probation period to expire naturally wherein the employee
is released at the end of that period.
The second is to release the probationary employee before the end of the probation
period. Where the probationary period is cut short then the issue of notice arises,
and he must be given notice in terms of the contract. (see Time Bank of Zimbabwe
v Nkosana Moyo HH26/02.)”
The Court went on further to say at the end of probation, that is, at the end of three
months having the respondent in continued employment meant that the
respondent was no longer on probation but was a permanent employee.
The law is clear in that letting an employee work beyond the probation period for
whatever reason results in the employee automatically becoming permanent.
However, others have given employees fixed term contracts at the end of
probation.
Such fixed term contracts can easily be challenged, and the employee declared
permanent depending on circumstances of each case.
In conclusion employers have to properly structure and manage probation so that
they do not fall foul of the law.