The meaning of probation

The Macmillan English Dictionary for Advanced Learners defines probation as “a period of time during which someone who has been given a new job is watched to see whether they can do the job well and stay in the position”.

Put in another way, the purpose of probation is to give the employer an opportunity to evaluate the employee’s suitability before confirming him or her to a permanent post in the organisation.

Section 12(5) of the Labour Act (Chapter 28:01) stipulates a single, written, non-renewable probationary period of one day for casuals and seasonal workers and three months in any other case.

During this period, notice of termination of the employment contract to be given by either party is one week in the case of casual work or seasonal work or two weeks in any other case.

Employees on probation should be given reasonable instruction, training, guidance and counselling to get them up to speed quickly.

On average, a 2003 research study found that the time for new employees to achieve full productivity ranged from eight weeks for clerical jobs to twenty weeks for professionals to more than twenty-six weeks for executives.

In the past, managers were often content to wait months or even years for their new staff to get up to speed. In today’s fast-paced, competitive environment, many managers simply don’t have that luxury.

Where the employee’s performance is considered to be falling short of acceptable standards, the employer should clearly articulate those aspects in which the employee is incompetent.

The law expects probationary employees to be alerted of any alleged deficiency in their performance and to be given the opportunity to remedy it. If there is no improvement, the employee may be dismissed.

However, prior to dismissing the employee, the employer must invite the employee to make representations and the employer must consider those representations.

Termination of a probationer’s employment can be due to misconduct. A probationer can commit theft, fraud, disobey lawful orders, assault a fellow worker, divulge confidential information and so on.

In relation to such misconduct, the probationer should be treated as any other employee, that is, a procedurally and substantively fair disciplinary hearing must be conducted before dismissing the employee.

The fact that a probationer has no long service record can then be taken as an aggravating factor when the penalty is being determined.

An unsuitable employee can be dismissed at any point, without having to wait for the expiry of the probationary period.

A number of employers misunderstand the meaning of probation or interpret the legal provisions wrongly.

The biggest mistake that employers frequently make is that no review of performance is done during or at the completion of the probationary period.

Sometimes, the employee even receives some salary increases, in addition to being praised for certain projects which he or she would have completed.

The employer then suddenly seizes upon the slightest sign of poor performance to dismiss the employee.

In such circumstances, courts have queried the seriousness of the probationer’s incompetence and whether it could not have been rectified.

A number of cases concerning probation have been decided by the courts.

As I highlighted earlier on, where the employer fails to communicate to the probationer that his or her performance is lacking, the employee is denied the opportunity to correct the deficiency.

This was stated by the court in Rhodes vs Bias Binding Manufacturers (1985). In this case, the court ordered the employer to reinstate the employee.

In the case of BEEWU & Others vs MD Electrical (1990), the court decided that a probationary employee must be counselled and helped to correct any problems he may have in the job, and that he “should also be treated sympathetically and with patience, especially where he lacks experience in his new work field and he should therefore be given a reasonable opportunity to improve his work performance or to acquire the required skill”.

In situations where probation goes beyond the duration defined in the law, it does not automatically mean that the employee has become permanent by default.

This is what the High Court said in Gumbo vs Air Zimbabwe (case number HH 163/2000).

Air Zimbabwe allowed Gumbo’s probation to exceed the agreed duration by twenty-six days.

The company then informed Gumbo that his probationary period had not been successful, gave him due notice and dismissed him.

Gumbo appealed to the High Court for a review of his dismissal on the grounds that he was now a permanent employee, his employment having gone beyond the probationary period, implying that the employer was happy with his performance.

The High Court could not be convinced by this argument and decided in favour of Air Zimbabwe.

The employer has a common law right of testing an employee under probation.

The Supreme Court stressed this point in SIRDC vs. Michael Chakuparira (case number SC 94/2001).

In August 1997, SIRDC engaged Chakuparira as a research scientist on a three-year probationary contract.

In October 1998, Chakuparira was instructed by his director to sit for an assessment test. He wrote back to the director expressing his unwillingness to undergo the test.

He was suspended, charged for refusing to obey a lawful order and dismissed. On appeal, the Labour Tribunal (as the Labour Court was then known), decided in favour of Chakuparira on the basis that the assessment was premature and could only be done at the end of the three-year probationary period.

The Supreme Court overturned the decision of the Labour Tribunal and ruled in favour of SIRDC. The court cited the decision in the case of Madawo vs Interfresh (2000) in which it was pointed out that probation does not guarantee employment for the full period of the probation.

Perhaps the case that dealt comprehensively with the issue of probation was that of Kwangwari vs CBZ (case number HH 79/03) presided over by Justice Ndou. Kwangwari was employed by the CBZ on probation as a manager.

CBZ was dissatisfied by Kwangwari’s performance and terminated his contract.

My intention is not to bog my readers down with the details of the case, but to highlight the principles established by the court judgement, which can be summarised as follows:

The objective of a probationary period is not only to assess whether the employee has the technical skill and ability to do the job; it also serves the purpose of ascertaining whether the employee is a suitable employee in the overall sense. This would include an assessment of aspects such as his ability to fit in with the rest of the organisation, get on with customers or clients, his demeanour and diligence, as well as his character. The probationer must be able to show that he will be a good permanent employee.

The position of a probationary employee should not be equated with that of a permanent employee. An employer is entitled to terminate a probationary employee’s employment provided that it does not behave in a grossly unfair or arbitrary manner.

At common law, probationary clauses give employers the right to terminate the contract on expiration of the probationary period. The courts, however, require employers to justify the dismissal of probationary employees in much the same way as they are required to do in the case of any other employee, although the court may be disposed to accept, in the case of the dismissal of a probationary employee, reasons slightly less compelling that they would require in the case of long-serving employees.

Before dismissal is contemplated, the general principle is that the employee should be timeously informed of his deficiency, be told how to rectify it and be given a reasonable opportunity to improve before any action is taken against him.

Higher standards are expected of senior or managerial employees than ordinary workers. A duty also rests on a senior employee to independently assess his problems and take steps to reform.

These court cases highlight the fact that, contrary to popular belief, probationary employees are also protected by law and cannot be dismissed at the employers’ whim.

In the interests of social justice in the workplace, the employee must only be dismissed for legitimate reasons and after having been given the opportunity to state his or her case.

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