For many years, probationary period was treated as a trial period during which employers enjoyed wide discretion to terminate employment without providing reasons. This position has now fundamentally changed under the Employment and Labour Relations Act, marking a significant shift towards fairness, transparency, and accountability in employment relationships. The contrast between the old Employment Act and the new legislative framework clearly illustrates how probation is no longer a “no-questions-asked” phase of employment.
The Employment Act
The Employment Act, under section 20(2) expressly allowed either party to terminate the contract of employment during the probationary period without giving reasons, provided the required notice was given. In practice, this meant that employers were not legally obliged to justify their decisions, even where termination was based on poor performance, conduct, or subjective assessment. As long as the procedural requirement of notice was met, the termination was considered lawful.
This approach placed workers in a vulnerable position, as they could be dismissed without explanation or an opportunity to improve. It also created room for arbitrary decision-making, masked discrimination, and poor performance management practices. The law did not require employers to document performance concerns or demonstrate that probation was used as a genuine assessment period.
The Employment and Labour Relations Act
The Employment and Labour Relations Act introduces a more balanced and rights-based approach to probationary employment. Section 155(4-5) fundamentally alters the legal position by requiring that termination during probation be supported with valid reasons. The said section states that where an employer has given a worker on probation the required expectations, assessed their performance and has given them the opportunity to improve, then the employer may terminate the contract of employment with notice. The stance would be that the employer is without a doubt, is satisfied that the worker on probation is not suitable for the role at hand. This provision removes the comfort previously enjoyed by employers and furthermore subjects probationary terminations to scrutiny thus creating a fair play field for all.
Under the new Act, employers are expected to set clear performance expectations at the start of probation which translates to the beginning of employment, provide guidance and feedback, and allow the worker a reasonable opportunity to improve. This makes it clear that it is a process and not necessarily a sprint. Terminations during probationary periods without evidence of assessment, feedback, or support may now be challenged as unfair.
Implications of the Shift
The combined effect of sections 155(4) and 155(5) is that employers must now show that terminations during probation were based on genuine and justifiable reasons, rather than emotion, gut and a lack of “oomf” as some tend to say. This aligns probationary termination with broader labour law principles that emphasise fairness, reasonableness, and accountability.
In contrast to the old Employment Act, the new framework recognises that probationary workers are still entitled to dignity and fair treatment. While employers retain the right to terminate workers who are not a good fit, that right must now be exercised responsibly and transparently. Poor performance must be identified, communicated, and managed, rather than assumed or implied.
Conclusion
The transition from section 20(2) of the Employment Act to sections 155(4) and 155(5) of the Employment and Labour Relations Act, represents a significant evolution in labour protection. This calls for employers to ensure they have relevant plans to guide not only the workers on probation, but also the supervisors during probationary period. Who is to do what, when and how. Employers who fail to adapt their probation management practices risk exposure to unfair termination claims, while those who embrace structured performance management will be better positioned to comply with the law and foster fair employment relationships.
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