THE PROBATIONARY EMPLOYEE

• Citation: (1993) 5 SAcLJ 245
• Published date: 01 December 1993
• Author: RAVI CHANDRAN
• Date: 01 December 1993

Both in the public and private sector it is common to require new employees to undergo a period of probation before they are taken on as permanent or regular employees.

As succinctly stated in one case1, the reason for such a practice is, “One cannot reasonably expect an employer to be able to assess the full capabilities and potentiality of a job applicant from a brief interview, an application form, references and the like. Rather he must be entitled to an opportunity to view the new hire in the particular context of his own work environment. That is the sole purpose of the probationary period.”.

The aim of this article is examine the rights of such employees while they are so placed on probation.

1. Employee on Probation

Firstly, it is important to determine when exactly an employee will be considered to be on probation.

The issue arose for consideration in Re Kaiser Resources Ltd.2. In this case, the dismissed employee was a member of a trade union which had a collective agreement with the employer concerned. Clause 8.01 of the collective agreement provided that ‘seniority’ was to commence 30 days from the date of employment. However, the employee concerned was dismissed before the 30 day period was up.

In addition, clause 3.01 of the collective agreement provided that an employee could not be dismissed unless there was ‘just cause’. As will be discussed shortly3, the standard of determining whether there is ‘just cause’ varies greatly depending on whether the employee dismissed is on probation or not. Thus in this case, it became important to determine whether the employee concerned was on probation.

On behalf of the employer it was argued that since ‘seniority’ commenced only after 30 days, prior to that period the employee was on trial and was a probationer.

However, the court rejected this argument and held that clause 8.01 was not sufficient to imply that prior to the 30 day period the employee was on

probation. Accordingly the court held whether the dismissal was for ‘just cause’ had to be tested against the standard applicable to regular or confirmed employees.

Thus the first point to note is that, in the absence of clear terms, an employee will not be considered to be on probation.

2. No Security of Tenure

Where the contract does state in clear terms that an employee is to be placed on probation, it is also common for a period of probation to be specified. Provided the probationary employee does not commit a fundamental breach of contract during this period, the question that arises is whether the probationary employee has security of tenure to the extend of period so specified.

During the period of probation, the probationary employee is on trial and has to establish his suitability for the job4. In light of this it may be argued that the probationary employee should have the benefit of the entire period of probation in order for him to prove his worth and should not be dismissed prematurely before the end of that period. However, such an argument has been rejected by the courts.

The leading case on point is Dalgleish v Kew House Farm Ltd5. In this case the contract provided that “Your position will be probationary for a period of three months at the end of which time your performance will be reviewed and if satisfactory you will be made permanent”. Though the period of probation was for three months the employee in question was dismissed shortly after three weeks.

It was argued on behalf of the employee that having regard to the phrase “at the end of which time your probation will be reviewed”, the employee should have been given the benefit of the entire period of three months in order for him to prove his worth and should not have been dismissed before that.

However, the court rejected this argument and held that notwithstanding the phrase mentioned above, there was no promise implied or express to guarantee the probationary employee definite employment for period of three months and as such the employee could be dismissed at any time.

The issue also arose for consideration in the Straits Settlements case of John Wisdom v Roebourne Finance and Investment Co Ltd.6. In this case the

contract provided that “ You are appointed assistant on three months’ probation from 20th July, 1927,…At the September I will advise you whether you will be confirmed on the appointment or not”. The employee in question, was dismissed on the very second day of his employment.

It was argued on behalf of the employee that the contract provided for “a definite engagement for three months subject to re-engagement at the end of three months if the respondent’s work was found to be satisfactory”. The court rejected this argument and held that an employee on probation could be dismissed at “any time” during the period of probation.

Thus it is clear that an employee on probation does not have security of tenure to the extend of the period of probation specified in the contract and can be dismissed at any time during that period.

3. Right of Dismissal

Since a probationary employee does not have security of tenure to the extent of the period probation specified in the contract and can be dismissed at any time during that period, it becomes important to determine how, when and on what grounds a probationary employee can be so dismissed during that period.

We shall first proceed on the assumption that the contract of employment is silent on the matter.

A. Contract is Silent

(i) Termination Without Cause

At common law it is always possible to terminate a contract of employment without cause provided reasonable notice or salary in lieu of notice is given7.

In Re Burns Foods Ltd.8, it was held that a probationary employee too could be dismissed without cause provided reasonable notice or salary in lieu of notice was given.

In determining what amounted to reasonable notice, the court in Re Burns Foods Ltd. took into account various factors, such as custom, the nature of the employment, qualifications of the employee and the length of employment9. On the facts, since the employee concerned was required to do ordinary packing work which did not require “any particular training or any specific

skill or educational background” and since the employee concerned had been employed for less than a month, the court held that one day or one day’s salary in lieu of notice was reasonable.

Though the factors listed above aid in determining the amount of notice to be given, at times the amount of notice to be given may be governed by statute. Thus, if the the probationary employee falls within the ambit of the Employment Act10, Section 10(3) of Act would come into play. Section 10(3) of the Employment Act, states inter alia, that if the employee is employed for less than 26 weeks, one day’s notice would suffice and that if he is employed between 26 weeks and 2 years, one week’s notice would suffice. At this juncture reference must also be made to Section...