Can a Probation Contract Be Extended?
By Dorcas Atukwa
Probation is best defined as a period in which a prospective employee’s work performance and competencies are being assessed in order for the employer to ascertain the employee’s suitability for the post. Continuation of a permanent employment contract is therefore dependent on the employee’s satisfactory performance of her duties during the probationary relationship.
The employment relationship is one of the most commonplace legal relationships and it is necessary that an employer is accorded, through probation, an opportunity to evaluate an employee and ascertain the employee’ technical skills and ability to do the job. Probation also provides the employer with an opportunity to assess an employee’s ability to adapt to the organisational culture as well as assessment of an employee’s ability to fit into the organisation in the wider sense. Due to its importance, it is important to discuss the concept of probation and the legal implications attached to it.
“… a contract of employment may provide for a single, non-renewable probationary period…“
Section 12(5) of the Labour Act (Chapter 28:01) provides for the probation framework in the workplace. The section states that ‘…. a contract of employment may provide for a single, non-renewable probationary period….’. A reading of the section shows that it is not mandatory for an employer to engage an employee on a probationary basis. The employer exercises its discretion to either enter into a probation contract or to outrightly employ the employee on a substantive basis.
The Act however stipulates the duration of the probation period and parties to a probationary contract are bound to adhere to these durations. In terms of the Act, the probationary period for a casual or seasonal worker is one day. The probationary period for employment instances falling outside of casual and seasonal work is three months. The termination notice for casual and seasonal probation is one week whilst a period of two weeks applies in all the other instances.
Employer’s options at the expiry of the probation period
The employer has two options at the end of the probationary period. Firstly, it can opt to allow the probation contract to terminate on the basis of the expiry of time and release the employee. Secondly, an employer can confirm the employment contract on either a fixed-term or an indefinite contract.
Can the probationary period be extended?
Having canvassed the law regulating the duration and termination notices in probationary contracts, it is important that we address the question of whether or not one can extend the probationary period. Employers sometimes opt to extend an employee’s probationary period in order to further assess the employee and occasionally, extensions are done to allow an employee an opportunity to improve on their performance. The extension of a probationary period is a potential pitfall that exposes the organisation to litigation.
Section 12(5) clearly stipulates that the probationary period is a single, non-renewable period. It is therefore clear that the probation period can neither be extended nor renewed. In the case of St Giles Medical Rehabilitation Centre v Lambert Patsanza SC 59/18 the court held that once a probationary period is given by an employer, then it can only be a single and non-renewable period. In this case, the employer advised the employee that his position was not going to be confirmed owing to an adverse evaluation of his performance. The employer however extended the employee’s probation period by one month in order to allow the employee to remedy the shortcomings that had been unearthed by the evaluation process. The employee contested the extension of his probation period and insisted that he had assumed a permanent employee’s status based on the completion of accounts for 2011 and also due to his issuance with a company car. Upon expiration of the “extended probation”, the employee was advised that his probation had not been successful and was given two weeks’ notice to terminate his service. The Supreme court made a ruling that the probationary period is non-renewable and that the employee had assumed a permanent employee status.
Employee’s status when the probationary period is extended
The purported extension of an employee’s probationary period has an effect on the status of the employee. The probation period creates a temporary employment relationship subject to be solidified upon fulfilment of certain conditions. However, a purported extension of the probation period results in the employee assuming a permanent employee status. In light of section 12 (5) which prohibits the extension of the probation period, it follows that a purported extension of the probation period is akin to conferment of a permanent employee status. In the St Giles case, the Supreme Court agreed with the labour court’s finding that the respondent had become a permanent employee when the employer purportedly extended his probationary period.
Probation is an integral procedure for the employer which needs to be utilised after the employer has appraised itself of the legal implications and obligations attached to it. Of paramount importance is the need for strict adherence to the provisions of the Labour Act in order to avoid exposing the organisation to potential lawsuits.
All writers’ opinions are their own and do not constitute legal or professional advice in any way whatsoever. We recommend readers to perform their independent research and/or seek legal advice from legal practitioners. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any information published herein.