Columnists Features

Fired during period of probation?

OWEN Kabanda.

WITH the high unemployment in Zambia, is it necessary to follow the law when firing employees on probation?
In many companies, there is a policy to have employees undergo a probation period of three or six months, which is used to assess an employee’s suitability for the job.

After the probation period, the employee is assessed and then confirmed in his or her appointment, if found suitable.

If not suitable, the probation period may be extended from three months to six months. If still found not suitable, one cannot be confirmed and employment is terminated.
Following the political and economic liberalisation in Zambia after 1991, the country has experienced the coming of many foreign companies that are employing Zambians.
Many Zambians have also proceeded to establish small and medium enterprises, as well as big corporations, which, like their foreign counterparts, are creating employment opportunities for people.
Over these years, the labour laws were not strong enough to compel employers to give any reason for firing someone on probation if the employer chose to do so.
In the past, if one employed someone and did not like them for whatever reason, there was no stress on the part of the employer. The solution was simple; non-confirmation or unsuccessful probation.
The person will be gone, no reason required and no further explanation given whatsoever.
While some companies continue the practice of simply non-confirmation after probation, it is important to understand the following:
1. Legal provisions: The long-standing notion that when you engage someone and they are on probation for the first three or six months they are not employees is actually not correct.
When you engage someone who in return for wages enters into a contract of service, they become an employee as per section 2 of the Employment (Amendment) Act 2015.
Those who argue that a person on probation is not an employee should justify what they call the money they pay that individual. If it is a wage or salary, then the person is an employee.
In other words, an employment relationship is created the moment the person starts to undertake work in accordance with the instruction of the employer and under the control of the employer as per section 2 of the aforementioned law.
You cannot therefore claim that someone is not an employee when they have been working for you. To terminate the employment, the provisions of the law will have to be followed.
2. Termination with reason is law: The time for just waking up on the wrong side of the bed and firing people is long gone.
Employers cannot just be saying, “You are fired!” or “I do not like you, I will not confirm you, go!” Sorry, it does not work like that anymore.
Now an employer is required to give a reason for terminating the employment of even those on probation.
For one to terminate employment, it has to be for reasons related to (i) capacity, (ii) conduct of the employee, or (iii) operational requirements of the undertaking as per section 5(b)(3) of the Employment (Amendment) Act 2015.
If the reason you are not confirming the person is related to capacity/ performance or conduct/ behaviour, you need to have proof of the person’s unacceptable performance or behaviour.
Further, for reasons relating to performance and/ or behaviour, the appropriate disciplinary process should be followed, including giving the employee an opportunity to be heard on the charges raised against them.
If the reason for termination is due to changes in the operational requirements of the business, the appropriate procedure for termination by notice or redundancy (whichever applies), has to be followed accordingly.
3. Have disciplinary procedure: As earlier mentioned, making disciplinary decisions purely based on your emotions is now a thing of the past. Employees cannot be treated like toys which one buys, uses, and throws away any time.
Employers need to have appropriate capacity/ conduct evaluation forms or systems that they can use as proof that indeed the employee’s performance or behaviour was unacceptable.
There is also need to have up-to-date and legally compliant disciplinary code and grievances procedures which help employers to terminate employment for even those on probation after the due process.
4. Train employees: When employing people, it is important that even if they are on probation, the employer undertakes induction trainings.
Training employees helps them understand their performance and behaviour requirements so that even when they are on probation, they know what may lead to termination of employment.
5. Train managers or supervisors: Some employers have great disciplinary codes in place, yet their managers or supervisors are not adequately trained in the same.
Training company officials reduces mistakes and improves performance and behaviour of employees.
Just because there is high unemployment in Zambia, it does not mean employees on probation should be treated badly.
The employees who are on probation should be subjected to the same disciplinary process as other workers.
To this effect, employers should manage all employees fairly well and justly.
The author is a business and human resource advisor.

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