Should Probation be a justification for Fixed term employment?
This query is raised in light of a relatively new section 198B which came into force on 1 January 2015 under the Labour Relations Amendment Act (No.6 of 2014)(LRAA).
In terms of Section 198B ‘fixed term contract’ is defined as a contract of employment that terminates on the occurrence of a specified event; the completion of a specified task or project; or a fixed date, other than an employee’s normal or agreed retirement age.
Section 198B does not apply to employees who earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; an employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years, unless the employer conducts more than one business; or the business was formed by the division or dissolution for any reason of an existing business; and an employee employed in terms of a fixed term contract which is permitted by any statute, sectoral determination or collective agreement.
In terms of section 198B, an employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if the nature of the work for which the employee is employed is of a limited or definite duration; or the employer can demonstrate any other justifiable reason for fixing the term of the contract.
In terms of this section, the conclusion of a fixed term contract will be justified if the employee is replacing another employee who is temporarily absent from work; is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; is employed to work exclusively on a specific project that has a limited or defined duration; is a non-citizen who has been granted a work permit for a defined period; is employed to perform seasonal work; is employed for the purpose of an official public works scheme or similar public job creation scheme; is employed in a position which is funded by an external source for a limited period; or has reached the normal or agreed retirement age applicable in the employer’s business.
Employment in terms of a fixed term contract concluded or renewed and which cannot be justified is deemed to be of indefinite duration.
I dont believe that probation is a justification for a fixed term contract of employment. Probation is a period within which a newly employed employee is employed for in order to assess if that person is adequately able to perform the job. If so them the person will be placed on a full time employment contract.
A period of probation does not in our view fall within any of the categories, albeit examples only- set out above.These examples however do give a strong indication that the period is expected to be of a temporary period and in order to meet or satisfy a particular need which is temporary in nature and which does not justify the employment of a full time employee.
Probation, in our view is not a temporary post or an employment of a person to meet or satisfy a short term requirement. To the contrary, it is rather to ensure the employee can do the job and if so such person will be placed under a full time employment contract.
