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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