Introduction
Starting a new job does not always mean that an employee has immediately attained confirmed or permanent status.
Many employment contracts provide for a probationary period, usually for a specified number of months or years. During this period, the employer assesses the employee’s suitability for the position and determines whether the employee should be confirmed.
However, probationary employment is sometimes confused with temporary employment. The Nigerian courts have made it clear that the two concepts are not necessarily the same.
What is probationary employment?
Probation is essentially a period during which an employer observes an employee before deciding whether to confirm the employee’s appointment.
In OYETAYO v. ZENITH BANK PLC, Suit No: NIC/IL/01/2012, Ilorin Judicial Division, judgment delivered on Tuesday, October 16, 2012, the National Industrial Court considered the meaning of probation and distinguished it from temporary employment.
The Court stated:
- “an appointment on probation may differ from one that is temporary. Probationary period in a contract of employment, going by Ihezekwu v. University of Jos [1990] 4 NWLR (Pt. 146) 598 SC, is a period of observation of the employee by the employer; and by Baba v. Nigerian Civil Aviation Training Centre [1986] 5 NWLRT (Pt. 42) 514 CA, probation means the initial period of employment during which a new, transferred or promoted employee must prove or show that he is capable of performing the required duty before being considered a permanent employment in the sense of being confirmed. This does not necessarily and thereby make the appointment temporary.”
The effect is that an employee can be on probation without the appointment necessarily being a temporary appointment.
Probation relates primarily to the period of assessment before confirmation, while a temporary appointment is a different form of employment arrangement.
Why are employees placed on probation?
The purpose of probation was considered by the Court of Appeal in AL-BISHAK v. NATIONAL PRODUCTIVITY CENTRE & ANOR (2015) LPELR-24659(CA) (Pp 49 – 50 Paras E – B).
The Court stated:
“The sole purpose of putting an employee on probation is to give the employer an assurance that that employee is a fit and proper person to be placed on permanent appointment. Probational period is a period of observation by the employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with an employee cannot justifiably complain. See IHEZUKWU v UNIVERSITY OF JOS [1990] 7 S.C. (PT.1) 18; OLAYINKA KUSAMOTU v. WEMABOD ESTATE LTD (1976) 11 S.C. 279.”
The decision therefore identifies probation as a period of observation.
The employer uses this period to determine whether the employee is a fit and proper person to be placed on permanent appointment.
Is a probationary employee a temporary employee?
Not necessarily.
This is one of the important distinctions arising from the decision in OYETAYO v. ZENITH BANK PLC (supra).
A probationary appointment and a temporary appointment are not automatically synonymous.
An employee may have been employed under a contract that expressly provides for a probationary period. During that period, the employee remains subject to the terms of the employment while being assessed for confirmation.
The mere fact that the employee has not yet been confirmed does not, by itself, convert the appointment into a temporary appointment.
The actual terms of the employment contract remain important.
Can an employee on probation be terminated?
An employee on probation may have the appointment terminated in accordance with the applicable terms governing the employment.
This is particularly important in light of the decision in AL-BISHAK v. NATIONAL PRODUCTIVITY CENTRE & ANOR (supra).
The Court explained that where the condition laid down for termination during the probationary period has been satisfied or complied with, the employee cannot justifiably complain.
This means that an employee should not assume that being on probation provides an absolute guarantee of continued employment until the end of the probationary period.
At the same time, employers should examine the applicable contract and conditions of service before terminating the employment of a probationary employee.
The relevant question is not simply whether the employee is on probation, but what the applicable terms provide concerning termination during probation.
What should an employee look for in a probationary appointment?
An employee receiving an offer of employment containing a probationary period should carefully examine the relevant terms.
1. The duration of the probationary period
The contract should indicate how long the probationary period is intended to last.
It may be three months, six months, one year or another specified period.
2. The conditions for confirmation
The employment contract may specify the requirements that an employee must satisfy before confirmation.
These may include satisfactory performance, successful completion of an assessment or compliance with particular requirements of the employer.
3. The procedure for confirmation
Some employers require a formal confirmation letter before an employee becomes confirmed.
The contract or applicable conditions of service should therefore be examined to determine what is required.
4. Termination during probation
An employee should pay particular attention to the provisions governing termination during probation.
The contract may prescribe a specific notice period or other conditions applicable to termination.
5. Applicable conditions of service
The letter of appointment may incorporate an employee handbook, conditions of service or other documents governing the employment relationship.
Those documents may be relevant when determining the rights and obligations of both parties.
What happens when the probationary period ends?
The expiry of a probationary period does not necessarily have the same legal consequence in every employment relationship.
The terms of the particular contract are important.
For example, an employment contract may provide for formal confirmation following satisfactory performance. Another contract may contain different provisions concerning confirmation or extension of probation.
An employee should therefore examine the actual employment documents instead of assuming that the mere passage of time automatically produces a particular legal result.
What should employers consider when placing employees on probation?
Employers should ensure that the terms governing probation are clearly stated in the employment contract.
The employee should know, as far as the contract permits, the duration of the probationary period, the requirements for confirmation and the terms governing termination during probation.
Where an employer intends to terminate a probationary appointment, the applicable contractual provisions and any relevant statutory or regulatory requirements should be considered.
Employers should also be careful about using the terms “probationary” and “temporary” interchangeably.
As recognised in OYETAYO v. ZENITH BANK PLC (supra), an appointment on probation may differ from one that is temporary.
What should employees do if their probation is extended?
An employee whose probation is extended should examine the employment contract and any applicable conditions of service.
The employee should determine whether the contract expressly permits an extension and whether any procedure or condition must be satisfied before probation can be extended.
The circumstances surrounding the extension may also matter.
Where there is a dispute concerning the employee’s status, confirmation or termination, the relevant employment documents should be reviewed carefully.
Conclusion
Probationary employment serves an important purpose in the employment relationship.
It gives an employer a period within which the employee’s suitability for confirmation can be assessed.
At the same time, probation should not automatically be equated with temporary employment.
For employers and employees alike, the employment contract remains an important starting point for determining the rights and obligations applicable during the probationary period.
Disclaimer
This article is provided for general informational and educational purposes only and does not constitute legal advice. Employment law depends on the facts and circumstances of each particular case, including the terms of the contract of employment, applicable staff handbook or conditions of service, and relevant legislation. Readers should obtain professional legal advice on their specific circumstances before taking or refraining from taking any action based on the contents of this article.
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