Probationary period has become a subject of debate in employment relationship and has led to labour disputes which have spilled into courts. In some cases the disputes have gone as far as the Supreme Court and these have formed part of judicial precedent in similar cases. Some employers have a tendency of fixing longer probation period and willy-nilly extend the period before they terminate the employment contract of an employee citing incompetence. Such practice is tantamount to exploitation of labour and violates section 65 (4) of the Constitution of Zimbabwe which provides that every employee is entitled to just, equitable and satisfactory conditions of work.
Section 12(5) of the Labour Act provides that a contract of employment may provide in writing for a single, non-renewable probationary period of not more than—
(a) one day in the case of casual work or seasonal work; or
(b) three months in any other case; during which notice of termination of the contract to be given by either party may be one week in the case of casual work or seasonal work or two weeks in any other case.
It is therefore clear that probationary period for a full time employee is provided for in the Act. It is however important to note that other employees are excluded from the provisions of the Act.
Exception is given to those governed by the Public Service Act since they are not covered by the Act. Section 3 of the Act clearly specifies those who are covered and those who are not covered as cited bellow.
3 Application of Act
(1) This Act shall apply to all employers and employees except those whose conditions of
employment are otherwise provided for in the Constitution.
(2) For the avoidance of any doubt, the conditions of employment of members of the Public
Service shall be governed by the Public Service Act [Chapter 16:04].
(3) This Act shall not apply to or in respect of
(a) members of a disciplined force of the State; or
(b) members of any disciplined force of a foreign State who are in Zimbabwe under any
agreement concluded between the Government and the Government of that foreign State;
(a) such other employees of the State as the President may designate by statutory instrument.
The wording of the section 3(2) supra is clear that members of the Public Service shall be governed by the Public Service Act. Statutory Instrument 1 of 2000 (Public Service Regulations) provides for a probation period of one year for public service employees. It is however noted that some quasi government institutions have adopted longer probationary periods which have no legal basis since they are not governed by Public Service Act. In addition to those longer probationary periods some organisations have policies that allow them to further extend the period after its expiration. The law is very clear that probationary period for a contract of employment other than casual or seasonal work shall be three months and can not be renewed. (Underlining is mine for emphasis)
In the case of St Giles Medical Rehabilitation Centre v Lambart Patsanza SC59/18 the Court ruled that probationary period can not be extended. Once it has expired the employer has to confirm the employee or terminate the employment contract. According to Madhuku (2010), probationary employment contract is separate from the employment contract which is conditional upon successful completion of probation. It is clear that the probationary period is given only once and if parties to the employment contract fail to terminate their relationship during or at the end of the probationary period it can not be extended. Section 12(5) supra does not need any further interpretation as its wording is very clear. MACNALLY JA in the case of Chegutu Municipality v Manyara 1996 (1) ZLR 262(5)-DE said that there is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to as Lord Wenselydale said in Grey v Pearson 1857 10 ER 1216 at 1234. “unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency”
Probation is reciprocal and either party can give notice to terminate the contract before the expiration of the probationary period if not satisfied by the conditions or conduct of the other party. The employer has discretion to employ permanently upon engagement or give probationary period. Where the employer decides to include probationary period in a contract of employment the period shall not be renewable.
Madhuku (2010,) clarified that at the end of probationary period, the employer has two choices either to allow the probationary contract to lapse and let the employee go or enter into the second employment contract with the employee. There is no room for renewal of the probationary contract. In the case of Kazembe v Adult Literacy Organisation SC173/94, the Court stated that once a probation period ends and the employer is dissatisfied with the probation performance all that the employer need to do is to inform the employee that his service is no longer required and that would be the end of the matter.
Employers must be guided that probationary period is one day in the case of casual work or seasonal work and three months in any other case and that the probationary period can not be extended. Most employers only realise that the employee is not compatible after the probationary period has expired and they will be stuck with an employee who does not perform as required. It is critical to constantly monitor the probationary period so that it does not lapse before the suitability of an employee is evaluated. Those employers who prescribe probationary period of more than three months risk confirmation of employees to permanent status against their will.
Simbarashe Gobvu is an experienced La¬bour Practitioner and an Independent Arbitrator who write in his own capac¬ity. He can be contact¬ed at [email protected]/ Phone 0773215904 or 0713008767