Probation in employment law refers to a process of testing or observing the character or abilities of a person who is new to a role or job. It is permissible under our employment laws for an employer to engage anemployee on a probationary employment contract. The purpose of probation is to give the employer an opportunity to evaluate the employee`s performance before confirming employment. Guvava JA in St. Giles Medical Rehabilitation Centre v Patsanza SC-59-18 summarized the principles guiding probationary employment as follows:
“It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probationary period is a separate and distinct contract. Thirdly, the contract of permanent employment only comes into operation once an employee has successfully completed the period of probation and finally, it is reciprocal in nature. In other words if an employee is dissatisfied with the employer he may also terminate the employment by giving the requisite notice.”
To avoid abuse of probationary employment contracts, the Labour Act [Chapter28:01] provides that there can only be one, non-renewable probationary period. Section 12(5) of the Labour 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;duringwhich 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.”
The Labour Act permits only one probationaryperiod which is non-renewable. This means that probation cannot be extended. In terms of the Labour Act, there can only be one, non-renewable probationary period. The maximum length for a probationary period is one day for casual or seasonal contracts and three months for all other contracts. This means that at the end of a probationary period, the employer has only two choices: either allow the probationary contract to lapse and let the employee go, or enter into a second employment contract with the employee. There is no room for renewal of the probationary period.
In view of the above, an employer who engages an employee on a probationary contract must ensure that at the expiry of the probationary period the employee is notified whether he or she has successfully completed probation and if employment is to be confirmed. If the employee is unsuccessful the employer is obliged to communicate as much and the probationary contract terminates as there is no room to extend or renew it. Even an agreement between the employer and employee to extend the probation period is a legal nullity (as per St Giles Medical Rehabilitation Centre v Patsanza supra).
It sometimes happens that the employer remains silent upon expiry of the probation period, in other words the employer neglects to communicate the decision whether the employee has successfully completed probation or has failed but the employee continues to report for duty. That issue arose for determination in the case of Savanna Pharmaceuticals v Marera &Ors SC 24/19. The central issue revolved around the status of employees upon expiry of the probation period in light of the employer’s failure to timeously communicate the outcome of the probation. The court held as follows;
“By allowing the respondents to unconditionally progress to the substantive fixed term contract, the appellant’s conduct amounted to a fictional fulfillment of the precondition for the consummation of the substantive fixed term contract.That conduct undoubtedly gave the impression to the proverbial reasonable bystander that the appellant allowed the respondents to embark on the substantive fixed term contract because they had successfully completed their probationary period. This is so because in such a case,the proverbial reasonable man and the courts do not concern themselves with the minds of the contracting parties but the outward manifestation of their conduct. In the famous case of South African Railways & Harbours v National Bank of SA Ltd 1924 AD 704 at 715 –6 the court held that:“The court does not concern itself with the working of the minds of the parties to a contract but with the external manifestations of their minds. Even therefore if from a philosophical standpoint the minds of the parties do not meet, yet, if by their acts their minds seem to have met,the law will, where fraud is not alleged look to their acts and assume that their minds did meet and that they contracted in accordance to what the parties purport to accept as a record of their agreement. This is the only way courts can determine the terms of a contract”|. (My emphasis). That line of reasoning is in consonant with the doctrine of quasi mutual assent where if a party so conducts himself in a way that leads the other party to believe that he was consenting to a contract then, he is bound by his conduct. See Smith v Hughes(1871)6 QB 597 at 607 where BLACKBURNJ says: “If whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party upon that belief enters into a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms”. In this case the parties by their conduct and free volition fulfilled all the essential elements of a valid contract of employment particularly offer and acceptance. The appellant offered the respondents the fixed term contracts by conduct when it allowed them to commence work on the 6 months fixed term contract notwithstanding the alleged unsatisfactory work performance during the currency of the probationary period. The respondents in turn accepted the appellant’s offer by conduct when they commenced work in terms of the offer. By offering the respondents work on the fixed term contract at the expiration of the probationary period with the full knowledge that their performance was unsatisfactory, the appellant must be deemed to have waived its rights to terminate their respective contracts of employment at the expiration of their probationary contracts.This is so because at the expiration of the probationary period the appellant had an election to make, ether to terminate or to let them progress to the next contract of fixed term. It chose to let them proceed to the fixed term contract. Having made that election it will be absurd and a violation of the doctrine of sanctity of contract for the appellant to dismiss the respondents on the basis of conduct during the currency of the expired probationary period. Though not specifically pleaded the appellant’s conduct exposed it to the defence of estoppel which tends to hunt in pairs with the other defences of waiver and quasi mutual assent.”
Put differently the court interpreted the conduct of the employer of failing to timeously communicate the outcome of the probation as an intention by the employer to engage the employees beyond the probation period even though the employer attempted to raise the issue of unsatisfactory work performance at a later stage. It is imperative for the employer to observe the probation period and to timeously communicate its outcome to avoid the scenario where an employer is stuck with an employee whose performance is below par as a result of simply failing to communicate on time.
In Kazembe v Adult Literacy Organisation SC173/94 MacNally JAhad earlier made the point as follows;
“A period of probation by its nature presupposes that during the period of probation the probationer is on trial. At the end of the period stipulated, if there is dissatisfaction by the person placing an individual on probation common sense dictates that he is entitled to elect on whether to continue to employ the probationer or not. In casu, at the end of the probationary period the appellant did not communicate its dissatisfaction, the respondents continued to provide their services to the appellant for weeks without receiving any communication from the appellant. The appellant did not terminate the respondents` contracts during the three months probationary period and continued to accept their services after the expiry of the probationary period. In this regard, the appellant tacitly confirmed the respondents` employment hence they were now employed on fixed term contracts.”
During the probationary period the employee’s performance should be assessed, if necessary the employee should be given reasonable evaluation, instruction, training, guidance or counselling. If the employer considers the employee‘s performance to be deficient, the employer should advise the employee of any aspects in which the employer considers the employee is failing to meet the required performance standards. The parameters of standards must be clearly set out to the employee.
It must be emphasized that the probation period is meant to allow the employer to test the prospective employee in the new role and if the employer is unsatisfied they can easily do away with the bad candidate by terminating the probation contract. Employers should make good use of the probation period as failure to act may come back to haunt them.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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