TERMINATION AFTER THE END OF A PROBATIONARY PERIOD

QUERY:

“An employer wants to terminate an employee’s contract for failure to perform to expectations 2 weeks after end of probation. The employer had not yet confirmed the employee, so the question is are there any technicalities if they proceed to terminate for failure of probation.”

RESPONSE:

Introduction

There obviously will be a technicality. The employee may rely on St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18) and argue that terminating his contract two weeks after the end of probation is tantamount to extending his probationary period something which is not supported by the authorities.

St. Giles Medical Rehabilitation Centre v Patsanza

In Patsanza the courts argued that the employer had fallen in the error of extending the period of probation and in dismissing the respondent on two weeks’ notice. The court also commented as follows:

“It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three-month period of probation. Clearly, therefore, in these circumstances the court a quo was correct in finding that the respondent had become a permanent employee.”

Conclusion

In my view, the best procedure is for the employer to constitute a hearing and arraign the employee before an impartial official. Only when the employee is guilty of the offence can he be dismissed. This way, the employer avoids having to deal with the technicalities that may arise from cases like Patsanza.

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St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18)

“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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