“This
provision is clear and requires no interpretation. It seems to me that the
provision provides that where an employer decides to include a probationary
period in the contract of employment then that period is not renewable. The
court a quo in my view correctly found that the use of the word “may” in the
above section relates to the employer’s discretion to engage an employee either
on probation or immediately into a substantive position. Once a probationary
period is given by an employer then it can only be a “single, non-renewable”
period”.
Introduction
This dispute boiled down to
whether a probationary period can be extended. This is a big legal question in
my view. Employers may be faced with a situation where an employee needs seemingly
need more time to improve work performance. Such employers may dread giving this
employee a permanent appointment. The temptation in this instance is thus to
extent the period of probation. Patsanza precludes employers from
extending the probationary period.
Facts
The respondent, Lambert Patsanza was employed subject to a
three months probationary period. The appellant, St. Giles Medical
Rehabilitation Centre, decided to extend the probationary period by a period of
one month in an attempt to allow the employee to improve his work-related
performance. The employer terminated the contract after the expiry of the one-month
extension. The employee argued that his termination was unlawful as he had
become a permanent employee. The arbitrator and the Labor Court made the
decision that the termination had been unlawful. It was based on the decision
of the Labor Court that the current matter was before the supreme court.
Reasoning
The court reasoned that the purpose of a probationary
period is to assess an employee’s performance. This probationary contract is
different from the contract that follows when an employee completes the
probationary period and is appointed permanently. The contract of permanent
employment, the court reasoned, only comes after successful completion of a
probationary period.
The court looked at the wording of section 12 (5) and made
a finding that these words did not provide an employer a right to extend the
probationary period. Section 12(5) provides for a “non-renewable
probationary” period. The court in this regard noted as follows:
“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 appellant had not been dismissed following the expiry
of the probationary period. The court went to reason that he had become a permanent
employee because the period of probation had expired.
Verdict
The employee was deemed to have been unfairly dismissed.
Own Comment
The Judgement of this court was
well reasoned. The relevant section, 12 (5) is clear cut and not complex
interpretation was necessary.
This case indicates one area where the Zimbabwean Labour Law is different from the South African law. In terms of Patsanza and as already noted above the probationary period cannot be extended. On the contrary, n terms of South African law, a probationary period can be extended. It is therefore not an unfair labor practice in South Africa to extend the period of probation. South African labor law thus envisages three possible outcomes at the end of the probationary period. The first possible outcome is that of confirmation of the employee as an employee on a permanent contract, the second possible outcome is that of dismissing the employee and lastly, the contract can be extended. The only valid reason in terms of South African law for the extension of a probationary period is to provide the employee with an opportunity to improve himself or herself.
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