Demystifying employee probation

Taurai Musakaruka People Issues
An employer has the right to place a new employee on probation before confirmation of permanent appointment. This period is determined in advance and should be for a reasonable period. The purpose of probation is to establish whether or not the appointee’s performance is of an acceptable standard before taking them on full time.
The purpose of probation is to give the employer an opportunity to assess and evaluate an employee’s performance before confirming an appointment.

Probation should therefore not be used for other sinister purposes, for example, to deprive employees of the status of permanent employment.

Probation periods should be reasonable and they normally depend on the nature of the job, which in turn will determine how long it will take to establish whether the employee is performing satisfactorily or not.

Contrary to popular belief, a probation clause is not a licence to fire the employee at will. Despite this fact, employers frequently misuse the probationary status of the employee to get rid of the employee because: a) the employee has committed misconduct; b) the employer wants to make space for a brother, friend or cousin; c) the employee “does not fit in” and d) a manager does not like the employee.

According to the Labour Act “probation” is defined as “testing the employee’s work performance” – to assess the suitability of the employee in terms of his or her work performance.

A probationary employee is one who has a conditional employment contract, that is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he or she is or is not able to carry out the work properly.

While this describes the purpose of the probationary period it does not mean that the employer has a free licence to fire the probationer if the employer believes his performance to be unsatisfactory.

The employer is not allowed to extend the employee’s probation period in order to further assess the employee’s performance.

This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.

It is advisable that the probationary period be stated in writing (e.g. as part of the employment contract or letter of appointment) and that the company’s expectation during the probation period be communicated clearly and are understood by the employee.

In terms of the Labour Act Chapter 28:01 (12) (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.

Whenever an employee has been provided with accommodation directly or indirectly by his employer, the employee shall not be required to vacate the accommodation before the expiry of a period of one month after the period of notice specified above.

However, the parties to any contract of employment may, by mutual agreement, waive the right to notice: provided that where the termination is at the initiative of the employer, the employee shall have a right to payment for a period corresponding to the appropriate period of notice required in terms of section 12 subsection (4) or (5) of the act.

The biggest mistake that employers frequently make is to believe that the conditional nature of the probationary employment reduces the probationer’s rights.

On the contrary, the employer that places an employee on probation has a number of legal obligations including: a) making it clear that the employee is on probation; b) clarifying the length of the probation period; c) setting reasonable performance standards; d)specifying for and explaining to the employee the performance standards required.

Others include evaluating and monitoring the employee’s performance against the set performance standards; f) informing the employee of performance shortcomings; g) issuing warnings to the employee where he is failing to meet the required standards; h) assisting, guiding, counselling, training the employee where necessary and in the worst case; i) before dismissing the probationer, giving him an opportunity to state his case.

In the case of Fraser Vs Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility.

She took the matter to the Commission for Conciliation Mediation and Arbitration, where the arbitrator agreed that she was indeed guilty of the conduct for which she had been fired.

The arbitrator also agreed that this misconduct was serious enough to merit dismissal.

Despite this the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges. The employer was ordered to pay the employee compensation equal to four months’ remuneration.

In the case of Tharratt Vs Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance.

As the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was ordered to pay the employee compensation equal to three months’ remuneration.

These cases highlight the fact that probationary employees are strongly protected by law. At the same time, employees on probation often do not work out as well as was hoped. While the law allows the employer to dismiss such failures they must follow strict procedures first.

Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in: designing a probationary policy and procedure; setting realistic performance standards; designing measures for monitoring and evaluating work performance; training management in probation law and in the implementation of the probation policy and procedure.

Probation does not suspend or diminish employee rights and protection as per Zimbabwean employment laws on discrimination and harassment.

Employees on probation are entitled to the same protection as regular employees and if you ill- treat them or treat them unfairly, simply because they are on probation, you will regret it.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice. The views contained in this article are personal.