TERMINATION DURING PROBATION ON ACCOUNT OF MISCONDUCT AND POOR PERFORMANCE

Introduction

Misconduct or poor performance by an employee constitutes valid and fair reasons for termination according to Section 45(2) of the Employment Act, 2007 (hereinafter “the Act”). However, what is the case when an employee is on probation awaiting confirmation?

Probation is a period of engagement which gives an employer the opportunity to evaluate the employee’s performance before confirming their employment. To achieve this, the expected performance standards must be clearly set out in the employee’s job description.

In the interest of fairness, if the employer determines that a probationary employee’s performance is below standard, the employer should advise the employee of the aspects in which he is failing, to allow him an opportunity to improve before a final decision is made on whether or not to confirm them. This should not, however, be confused with a Performance Improvement Plan (PIP) which is a tool which an employer is expected to implement in order to manage the performance of an employee who has already been confirmed.

The Act provides that the probationary period shall not be more than six (6) months in the first instance, and may be extended for another six (6) months upon obtaining the consent of the employee. The option to extend the probation is discretionary and it affords the employee an opportunity to improve their performance.

The Employment and Labour Relations Court has held that employers must observe substantive and procedural fairness when terminating probationary contracts. Section 41 of the Act instructs an employer intending to terminate an employment contract on account of misconduct or poor performance, to give the employee an explanation of the reasons why the employer is considering termination and to accord the employee a disciplinary hearing. Where the employer fails to observe substantive and procedural safeguards, the effect is an unfair termination.

Please note…

If at the start of employment, the employee is granted a probationary contract, a hearing is not needed when the contract expires naturally at the end. The above safeguards apply where an employee is issued with a regular contract with a period of probation at the start.