Employment is what brings employees and employers together.
According to Section 2 of the Employment Act, employment “means the performance by an employee of a contract of employment”. Employment presents an opportunity for employees to earn an income that caters for their needs while employers get the opportunity to see their business ideas come to life. This thus forms a relationship that ought to have rules that govern it to ensure both parties successfully perform their obligations. The governor in this case is the contract of employment and the Employment Act.
The contract of employment states the terms of employment in detail i.e. the duration of the contract, probationary period, assigned wages, leave entitlement and so on. The Employment Act governs how these elements are implemented, i.e. how long the probationary period ought to be, the minimum number of leave days entitled to employees per month, the minimum wages and so on. The focus of this article will be on whether or not employees accrue leave days during probation.
Before establishing whether employees are entitled to leave during their probationary period, it is imperative to understand what constitutes an employee. Section 2 of the Employment Act states that an employee “means any person who has, either before or after the commencement of this Act, entered into a contract of employment for the hire of his labour”. It is evident from this definition that any person who agrees to a contract of employment for provision of their labour is deemed to be an employee. Now the next step is to determine how the probationary period comes into the mix.
A probationary period is a requirement that comes with employment opportunities. It provides a chance for employers to determine whether their new hire is a good fit and for employees to establish whether they are compatible with the position and the organisational culture. Probationary periods range between one to 12 months, depending on the nature of the position, the duties to be performed and its requirements, i.e. academic qualifications, years of experience and so on.
The elucidation
To determine whether employees are entitled to leave during their probationary period, we will refer to Section 98(2) of the Employment Act, which states: “Every employer shall grant to every employee employed by him leave with basic pay at the rate of not less than 1,25 days per month.”
Take note of the fact that the previous section does not single out certain types of employees from the rest but simply makes mention of employees in general. This means any individual, so long as they are employed under an employment contract, i.e. employee, is entitled to earning a minimum of 1.25 leave days every month. This completely disregards the probationary period element.
If any employer violates Section 98 of the said Act, they will be liable to “a fine not exceeding P1 000 or to imprisonment for a term not exceeding six months or to both”, according to Section 151(b) of the same Act. Whilst fines may not be easily implemented, employers are advised to ensure that they avoid squabbles by ensuring that employees earn leave days even during probation.
Conclusion
Probationary periods are a requirement that comes with the employment process. In the eyes of the law, an employee on probation is not less of an employee in comparison to confirmed employees. Therefore, whatever is to apply to any employee, as in this case leave entitlement and accrual, must apply to both confirmed and employees on probation. Hence, employees still earn or accrue leave during probation. All employers are advised to abide by this to avoid unpleasant run-ins with the law.
Contacts
If you want to join our free HR WhatsApp group or to consult, contact us on +267 75 54 67 84, +267 393 9435 or info@aupracontax.co.bw.
