1.

PROBATION CLAUSE

1. A probation clause in a contract of employment which allows the employer to try an employee whether he/she is suitable for the work. The stipulation comes with adverse implications against the employee since the contract of employment can be terminated within the stipulated probation period, without giving any reasons thereto.

1. In GAOPOTLAKE v. DULUX BOTSWANA (PTY) LTD 2000 (1) BLR 458 (IC) DE VILLIERS J at 463

a party terminating a contract of employment during a probationary period, need also not give any reasons for such termination. That will of course only be the position where there has been compliance with all the provisions of section 20. Should an employer however give reasons for such termination during a probationary period, this court is still precluded from enquiring into the validity of such reasons because such termination "shall be deemed . . . to have been terminated with just cause".

1. NDOU J in the High Court of Zimbabwe in the case KWANGWARI V COMMERCIAL BANK OF ZIMBABWE LTD HC 1793/99 gave a detailed analysis of the essence and objectives of a probation clause in a contract of employment and stated:

Employers often seek to protect themselves against being permanently saddled with an incompetent worker by inserting so-called probationary clauses into their employees' contracts of service. Probationary clauses typically reserve for the employer the right to terminate the contract within a specific period if the employee's performance is found to be unsatisfactory The essence of a probationary appointment is that the employer retains the right not to confirm the appointment after a specified period. The objective of a probationary period is to provide the parties with an opportunity to test one another and to find out whether they are compatible .For a probationary employee must know that he is on trial, and must therefore establish his suitability for the post. The objective of a probationary period is not only to assess whether the employee has the technical skill and ability to do the job; it also serves the purpose of ascertaining whether the employee is a suitable employee in a much wider sense. This would include an assessment of aspects such as his ability to get on with existing employees, customers or clients, his demeanour and diligence, as well as his character and his ability to fit in The common law position

is, that termination could take place prior to the expiry of the probationary period if the employee is found to be unsuitable for the job prior to the completion of the probationary employment.. A probationary employee enjoys the prospects of permanent employment provided he meets the standard set by the employer. The courts should prevent the probationary employee being deprived of the prospects of such employment on the basis of spurious claims

1. In Amalgamated Beverage Industries (Pty) Ltd v Jonker (1993) 14 LLJ 1232 (1.AC ) at 1249G-1250A it was held that ,

the position of a probationary employee should not be equated with that of a permanent employee and that an employer is entitled to terminate a probationary employee's employment provided that it does not behave 'grossly unfairly or arbitrated'.

1. In the Labour Court of South Africa the case of South African Football Association v Ramabulana Jr2175/09 at paragraph 21 Molahlehi J observed;

The principles governing the approach that the employer should follow when dealing with probationary employees is well established in our law. I do not intend dwelling into those principles save to say that probation is not a licence for treating and dismissing employees unfairly.

1. Probation provisions are guided by section 20 of the Employment Act. Critical reading of the section leads to the conclusion that probationary clauses referred to under the section apply only to contracts of employment of unspecified period. Courts have also interpreted the section to mean that probation clauses apply only to unspecified period contracts of employment only not for specified period.

1. Also it will defeat logic if one was said to be given a contract of employment for a specified period yet there is a probation clause hanging over his head providing that his employment may be terminated anytime, there is no logic in insisting that the contract be for a specified period in the first place.

1. The Industrial Court of Botswana at pg 461 in GAOPOTLAKE v. DULUX BOTSWANA (supra) concluded as follows;

A probationary period in terms of section 20 is only applicable to a contract of employment for an unspecified period of time. It does not apply to any other contract of employment.

1. The court in Anthony v Clothing Manufacturers (Pty) Ltd [2000] 2 BLR 29 (IC) referred at pg 34 the conclusion in GAOPOTLAKE v. DULUX BOTSWANA as the correct approach in interpreting section 20 of the employment act.

1. Even RUHUKYA J in MUKWEMBA v DEBSWANA DIAMOND COMPANY PTY LTD 2009 1 BLR 376 IC although he later surprisingly abandoned his approach was correct to concede as follows;

Clearly therefore the applicant is correct in arguing that s 20(2) of the Employment Act does not apply to him for the reason that he was employed on a fixed term contract. The only section in the Employment Act dealing with termination for fixed period contracts is s 17.

1. Also in KGOSI v CHINA CIVIL ENGINEERING 2006 (1) BLR 411 (IC) EBRAHIMCARSTENS J at pg 416 observed as follows;

It is clear that an employer may provide for a probationary period where the contract of employment is of an indefinite nature.

1. See also MOSALA v CAR WORLD (IC NO 2/97), unreported, per Hardisty AJ: 'The word "shall" in Section 20(3) of the Act is construed by virtue of Section 45 of the Interpretation Act (Cap. 01:04) as "imperative".... Accordingly an employer prior to entering into a contract of employment for an unspecified period of time must advise a prospective employee of the length of the probationary period and he must advise the employee in writing.' 1. The only local judgment which seems to suggest that a probation clause can be allowed in a contract of employment for a specified period is that of RAKHUDU v BOTSWANA BOOK CENTRE TRUST AND OTHERS 2005 (2) BLR 283 (CA) .The judgment can be criticized on the basis that the court did not provide any legal basis for its finding.

1. The court in RAKHUDU was quick to label that the well followed principle in GAOPOTLAKE V DULUX BOTSWANA was obiter without giving any justifications for such a conclusion, save to say that the contract was for a unspecified period of time.

1. It is worth mentioning that the Industrial Court in GAOPOTLAKE V DULUX BOTSWANA was giving an analysis of section 20 of the Employment Act and it held;

On an analysis and interpretation of the aforesaid section 20 the court makes the following findings: A probationary period in terms of section 20 is only applicable to a contract of employment for an unspecified period of time. It does not apply to any other contract of employment.

1. The court in RAKHUDU on the other hand did not give its analysis of section 20, but GAOPOTLAKE gave an analysis which has been followed in, KGOSI v CHINA CIVIL ENGINEERING 2006 (1) BLR 411, ANTHONY V CLOTHING MANUFACTURERS (Pty) Ltd [2000] 2 BLR 29 (IC), see also MOSALA V CAR WORLD (IC NO 2/97), unreported.

1. It is apparent that the court in RAKHUDU when interpreting the words in GAOPOTLAKE V DULUX BOTSWANA, where it said ;

A probationary period in terms of section 20 is only applicable to a contract of employment for an unspecified period of time It did not consider the following sentence in the judgment; It does not apply to any other contract of employment 1. It comes as no surprise that even the single case which applied the principle in RAKHUDU, the judge therein first conceded it was a correct approach that a contract of employment for a specified period could not be subject to probation. See MUKWEMBA v DEBSWANA DIAMOND COMPANY PTY LTD 2009 1 BLR 376 IC.

1. TERMINATION OF CONTRACTS WITH SPECIFIED PERIOD 1. If then probationary clauses cannot form part of contract of employment for a specified period, it follows that the termination of such contracts are guided by section 17 which is the only left section dealing with termination of contracts of employment for a specified period of time since section 18, 19 and 20 deal with those for an unspecified period of time.

1. Under section 17 a contract needs to be lawfully terminated, if it does not end at the expiry of the period. What constitute lawful termination is that the employer must have a valid reason to terminate the contract.

1. In MOKAYA v. MORTEO CONDOTTE (PTY) LTD 1994 BLR 394 (IC) De Villiers J on the

question of whether a fixed term contract be terminated before its expiry, after considering Section 17(1) of the Employment Act provides had this to say; The said Act therefore makes provision for earlier termination if it can be lawfully terminated and the Act does provide for lawful termination in the case of redundancy and serious misconduct.. The court wants to emphasise and cannot emphasise it enough, that the contractual right to terminate employment must be clearly distinguished from the exercise of that right and the procedure followed in so doing.

1. Where an employer considers terminating employment of an employee for a specified period he ought furnish the employee with notice and reasons thereto.

1. See MOKAYA v. MORTEO CONDOTTE (PTY) LTD (supra) pg 400. 2. Also in GAOPOTLAKE v. DULUX BOTSWANA (supra) where the Respondents after summarily terminating the Appellants contract of employment failed to rely on a probation clause termination because such probation was void it was said at pg 464; The court therefore finds that the Respondent cannot now rely on the protection of the deeming provision of section 20(2) and must therefore satisfy the court that it had a valid reason for summarily terminating the applicant's contract of employment.

1. As for notice and reasons for termination in MOTSUMI v. FIRST NATIONAL BANK OF BOTSWANA LTD 1995 BLR 713 (IC ) De Villiers J at page 717 to 718 stated as follows;

As to notice, this court in its judgment dated 6 January 1995 in the matter of Phirinyane v. Spie Batignolles [1995] B.L.R. 1 said the following at p. 8D-F:

"In its judgment in the matter of Mokaya v. Morteo Condotte (Pty.) Ltd. [1994] B.L.R. 394 the court mentioned in passing that if an employment contract provides for one month's notice to terminate such contract it would be in order to do so without a reason according to the common law but in labour relations it would in addition require just cause or a good reason for doing so. To avoid any confusion the court would like to clarify this obiter statement. The court merely used this illustration to demonstrate the principles of natural justice, which the Industrial Court applies, can if need be, overrule principles of the common law. Principles of natural justice cannot, however, overrule specific statutory provisions. In Botswana there are specific statutory provisions allowing for the giving of notice without giving any reason for it. This court is therefore bound by such specific statutory provisions."

In that judgment the court was alluding to section 20(2) of the Employment Act as to the giving of notice without giving any reason for it.

1. The cases aforesaid shows that the only exception where no reasons for termination are required apply only if the termination was under section 20 sub 2 of the Employment Act.

1. Further the argument that an employer when terminating a contract of employment needs to furnish reasons to the employee, when considering that a reason is not required when terminating a contract for unspecified period on probation, a conclusion will follow that in all other instances other than section 20(2) a reason is required.

1. The submission is in line with the maxim expressio unius est exclusio alterius, i.e. to express one thing is impliedly to exclude another, is applied where a statutory proposition might have covered a number of matters but mentions some while not mentioning others. See MOTHUSI v. THE ATTORNEY-GENERAL 1994 BLR 246 (CA)

1. Also the Court of Appeal in RAKHUDU v BOTSWANA BOOK CENTRE TRUST AND OTHERS 2005 (2) BLR 283 (CA) conceded that section 20 sub 2 of Employment Act applied to contracts of employment with a unspecified period of time at page 288 where it stated; Yet nothing could be clearer than the fact that subs (1) and (2) of s 20 deal with 'a contract of employment for an unspecified period of time' and thus do not apply to the present matter. In the case of subs (1) this is expressly stated. In the case of subs (2) there is a reference back to ss 18 and 19 which in turn deal with contracts of employment for an unspecified period of time. So the subsection is limited to those contracts.

1. APPLICATION OF LEGAL PRINCIPLES 2. The contract of the parties provided at clause 1 (D) that the contract will run for a period of 3 years unless terminated by mutual consent.

1. There has not been any termination by mutual consent by the parties.

1. Clause 11 of the contract at page 9 of the bundle which deals with termination of the contract cannot be seen as effective since it provides that whatever reason is sustainable to terminate the contract. A contract of employment with specific period terminates upon lapse of the period or lawfully.

1. As indicated earlier for summary termination to be lawful termination of a contract of employment with specific period before lapse, requires a valid reason which can either be redundancy or serious misconduct of.

1. The Respondent has never alleged any reasons for termination of the Appellants contract, save that it gave the Appellant payment in lieu of notice.

1. By signing the agreement the Appellant cannot be seen as waived her right for protection of the law under section 17 which requires lawful termination.

1. A contract of employment cannot provide for less favorable terms than those stipulated by the act, and the contact shall be null and void to the extent it so provides.

1. See section 37 of the Employment Act 2. Also in Mogopi v Nata timber Industries (Pty) Ltd IC 194/96 it was held that an employee cannot waive any of his rights granted in terms of the Act.

1. On the basis of the aforesaid clause 11 (A) of the contract of employment is null and void for inconsistency with section 37 of the Employment Act, as it provided that whatever reason may terminate the contract, while what is sustainable in law is a valid reason not any trifling reason.

1. The Appellant should succeed in this appeal because the Respondents failed to avail the Appellant any valid reasons for the termination of her employment, thinking they were entitled because of a misconception that the contract was subject to probation.