The ManicaPost
Trust Maanda
Post Correspondent
PROBATIONARY period in employment is a period when employees are tested for their character and ability to competently perform their duties in the new job.
Probation is a period during which the employer evaluates the employee’s performance before confirming the employment.
Probationary period provides the parties with an opportunity to assess one another and to find out whether they are compatible.
Probation is reciprocal in nature, meaning that if an employee is dissatisfied with the employer, he or she may also terminate the contract at the end of, or even during, the probationary period, by giving the requisite notice.
The probationary period is a separate and distinct contract.
The contract of permanent employment only comes into operation when an employee has successfully completed the period of probation.
In order for an employee not to work for an indeterminate probationary period, the Labour Act [Chapter28:01] (the Act) provides that there can only be one non-renewable probationary period.
Probation cannot be extended.
Section 12(5) of the Act provides as follows: “(5) 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.”
At the end of a probationary period, the employer either allows the probationary contract to lapse by expiry of time, or enter into a second and permanent employment contract with the employee.
An employer must notify the employee at the end of the probationary period whether his or her employment is to be confirmed or not.
If the employer does not wish to confirm the employment of the employee at the end of the probationary period, the employer must communicate that to the employee.
The employer cannot allow the employee to continue working after the period of probation and then turn around and say the employee was on an extended period of probation.
An agreement between the employer and employee to extend the probation period is a legal nullity because Section 12(5) of the Act provides for a single non-renewable probationary period.
If the employer remains silent upon expiry of the probation period, and the employee continues to report for duty, the employee is regarded to have had his or her contract confirmed.
That conduct by the employer gives the impression to a reasonable person that the employee had successfully completed their probationary period and the employer has confirmed the employee to a substantive contract.
The employer, by the doctrine of quasi-mutual assent, would have allowed the employee to unconditionally move to the substantive contract.
The doctrine of quasi-mutual assent says if a party so conducts himself or herself in a way that leads the other party to reasonably believe that he or she was consenting to the terms of a contract then, he or she is bound as if he or she expressly consented thereto, if the other party enters into the contract by placing reliance on that person’s conduct.
At the expiration of the probationary period, the employer has an election to ether terminate or to let them progress to the next.
There are two ways in which an unsuccessful probationary employee’s employment can be terminated.
The first is to allow the probation period to expire naturally and the employee is released at the end of that period.
The second is to release the employee before the end of the probation period.
Where the probationary period is cut short, then a notice must be given to the employee in terms of the contract or the Act.
The employer is entitled to dismiss the employee during probation and not wait until the end of the period of probation.
If at any time before the expiry of the probation period, it becomes clear that the purpose of the probation has been already frustrated or that the employee is so manifestly incapable of performing his duties that getting to the end of the probationary period is a waste of time, then there is no reason in continuing the probation.
Termination can take place before the expiry of the probationary period if the employer finds the employee to be unsuitable for the job.
The employer can terminate by notice as provided for in Section 12 (5) of the Act.
The termination has to be done in a legally correct way. An employee on probation is still an employee. The employee is protected by the law.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
