- 2011/09/25 -

Unfortunately many unscrupulous employers employ employees on a fixed term contact in order to avoid the consequences of employing them as probationary employees. Why do they do this ?

A probationary employee is an employee whose appointment as a permanent employee is subject to him successfully completing a probationary period. This period could be anything between one and six months. The Code of Good Practice; Dismissal provides that the purpose of the probationary period is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The Code of Good practice provides that the period of the probation should be determined in advance and be a reasonable duration. During the probationary period the employee’s performance should be assessed. The code also provides that the employer is required to give the employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.

So why do some employers try and avoid using probationary clauses in employment contracts and instead use fixed term contracts. A fixed term contract in this context is usually for three months. The contract stipulates when the contract commences and when it is terminated. If the employer does not wish to offer the employee permanent employment he simply advises the employee that the employment shall cease on the date stipulated in the agreement. The termination of a fixed term contract does not constitute a dismissal in terms of the Labour Relations Act unless the employee reasonably expected the employer to renew it on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it.

By employing an employee on a fixed term contract an employer may avoid having to act fairly in terms of assessing the employee’s performance. In practice it often happens that the employer does not properly evaluate the employee’s performance or sets unreasonable standards of performance which the employee is required to reach. In addition the employer may fail to give the employee proper training or instruction. During the probationary period an employer is required to advise an employee of any aspects of his performance that falls below the required performance standard. In addition if the employer believes that the employee is incompetent he is obliged to advise the employee the areas of his work  in which he is not competent.

So what happens if the employer does not want to offer an employee permanent employment. The Code of Good Practice provides that before an employer may decide to dismiss an employee it must invite the employee to make representations and then consider those representations. The Code also provides that an employee should not be dismissed for unsatisfactory performance unless the employer has given the employee appropriate evaluation, instruction, training, guidance and counselling and after a reasonable period of time for improvement the employee continues to perform unsatisfactorily.

In terms of a fixed term contract, the employer does not have to do any of this; if the employer is not satisfied with the employee’s performance and does not wish to offer permanent employment, he simply advises the employee that the contract will terminate as stipulated in the fixed term contract.

This is precisely why some employers do not employ employees in terms of a probationary period because they do not want to have to comply with principles of fairness.

The Legislature has recognised unscrupulous practice with regard to probationary employees in that the Code of Good Practice provides that probation should not be used for purposes not contemplated by the Code to deprive employees of the status of permanent employment however this does not afford any protection to employees engaged on a term basis.

So when you are interviewed for a job and offered a position make sure that the contract that you will be required to sign is not a fixed term contract.

Kevin Allardyce may be contacted on 011-694-4040 and Kevin@allardyce.co.za