According to section 2 of the Employment Act an employee is “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.” This definition obviously applies to people on any type of contract, for example those on contracts for specified period of time (fixed-term) or for unspecified period of time (permanent). It is standard practice that at the beginning of a contract of employment, employees are subjected to probation. It is worth noting probation is not a legal requirement but if implemented it has certain governing laws. A question that normally arise in relation to probation, is whether employees on probation are expected to serve notice or not. Read on!
The law
According to section 20(1) of the Employment Act probationary period is defined as “such period not exceeding three months in the case of unskilled employees, and twelve months in the case of skilled employees, as the contract may specify immediately after the commencement of employment under the contract.” The Act further states the key term that applies where probationary period is concerned in section 20(3) by stating that “before entering into a contract of employment which is to provide for a probationary period, the prospective employer shall inform the prospective employee in writing of the length of the probationary period.” What this subsection says in simpler terms is that probationary period must be in writing therefore, such a period is unlawful under a verbal or oral contract.
The notice
Section 18(2b) of the above-mentioned Act clearly outlines the notice period applicable in different cases, by stating that “where an employee whose wages are payable in respect of any period not less than a week but less than two weeks have been in continuous employment for two or more but less than five years, the minimum length of notice shall be two weeks, where an employee whose wages are payable in respect of any period not less than a week but less than a month has been in continuous employment for five or more but less than 10 years, the minimum length of notice shall be one month or where an employee whose wages are payable in respect of any period exceeding a day has been in continuous employment for 10 or more years, the minimum length of notice shall be six weeks.” It is evident the Act does not exclude employees on probationary period in any way it only speaks to the term employee as defined above which includes such employees. This implies that such employees are also expected to serve notice as stated. Section 20(2) further confirms the previous statement by saying “where a contract of employment is terminated during a probationary period by either the employer or employee under section 18 or 19 by not less than 14 days’ notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons therefor.”
Conclusion
As stated above employees on probation must serve notice of not less than 14 days depending on their pay cycle i.e., paid fortnightly or less = 14 days, paid monthly = 30 days etc. According to section 151b of the above Act, failure to comply would lead to “a fine not exceeding P1 000 or to imprisonment for a term not exceeding six months or to both” proving that it is in fact an offence.
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