4 years ago
Being the Thursday before a long weekend the office is practically empty, most people have taken advantage of the long weekend to take some of their leave days. That is, except for Naomi who is now used to being the ‘skeleton office staff’ while everyone else is on leave.
Each time she applies for leave, her request is denied on the grounds that she is not entitled to take leave while on probation.
She has been on probation for 8 months and there is no communication forthcoming from HR on whether or not her employment will be confirmed.
Type of contract
According to Naomi’s contract, she was to be on probation for the first 3 months, after which she was to be informed on whether or not she had successfully completed her probation.
8 months on and still no communication regarding her status.
2 weeks later, on a Friday, HR breaks the bad news to Naomi; HQ’s decision is that she is not a good fit for the position. She is to receive 7 days’ salary in lieu of notice and she is asked to hand over the office property in her position as that is her last day in employment.
No way…that can’t be legal
An employer has two options – to give a probationary contract or to give a normal contract with a probation period at the start.
The Employment Act defines a probationary contract as ‘a contract of employment, which is of not more than twelve months duration or part thereof, is in writing and expressly states that it is for a probationary period.’
Such a contract may be terminated by giving 7 days’ notice or by paying 7 days’ salary in lieu of notice. In addition, the employer need not give a reason for terminating the contract and the termination procedure does not apply.
If an employer chooses to give a normal contract with a probation period at the start then such a contract cannot be lawfully terminated by giving 7 days’ notice or paying 7 days’ salary in lieu of notice.
If the termination is on the grounds of poor performance or misconduct, an explanation should be given as to why the employer is considering terminating the contract and a disciplinary hearing should be accorded.
Both at the explanation meeting and at the hearing, the employee has the right to be accompanied by a fellow employee or a shop floor union representative. There are many other very important steps in this process but this is a summary.
HR informed Naomi that according to HQ, her performance was not as sterling as was expected and it appeared that she had inflated her capabilities at the interview.
Since Naomi’s termination was performance based, the termination procedure indicated above ought to have been adhered to.
The termination notice period is determined by the duration after which an employee is paid. If one is paid weekly then the notice should not be less than 1 week; if one is paid monthly then the notice should not be less than 1 month. It follows, therefore, that since Naomi was being paid monthly, she ought to have received not less than 1 months’ notice or pay in lieu.
I have seen numerous contracts that contain a provision for termination of an employee on probation and who is paid monthly by giving 7 days’ notice or paying 7 days’ salary in lieu of notice; this is unlawful [update – recent research on case law shows that most judges do not distinguish between a probationary contract and a normal contract with a period of probation and are ok with an employee on probation being let go by giving 7 day’s notice or pay in lieu].
How about leave?
On the issue of leave, the Employment Act provides that where employment is terminated after the completion of 2 or more consecutive months of service during any 12 months’ leave-earning period, the employee is entitled to not less than one and three-quarter days of leave with full pay. Having worked for 8 months, Naomi had accrued leave and she ought to have been paid the cash equivalent.
Mitigate your damage
Naomi was devastated by the loss of her job. She explained to her husband that she needed a time out from employment and that she would not seek alternative employment until she felt better. 9 months later, at the prodding of her husband, Naomi secured another job.
1 year after the termination, Naomi decided to sue the organization for the unlawful and unfair manner in which she was handled. During her cross-examination by the organization’s advocate, it came out that Naomi had taken no steps to seek alternative employment for a period of 9 months.
In the Judgment, the Judge recognized that Naomi’s termination was unfair and unlawful and that she was entitled to compensation by way of damages. The Judge, however, only awarded her 3 months’ salary as damages on the basis that she ought to have mitigated her damage by seeking alternative employment and that 3 months is what the judge considered a reasonable time to obtain alternative employment.
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