‘The probationary employee’ is a controversial topic that has been discussed many times before the court. The uncertain nature of the job and comparative law recognition as a regular employee are the most significant characteristics of probationary employment. This research will critically assess the nature of probationary jobs concerning the given case laws in question and will propose amendments to Sri Lankan labor law to meet contemporary demands of labor.
Nature of the Probationary Employment
An
employee who is undergoing a fixed and limited period when starting a new job
where he is tested to determine his suitability for the job is called a
probationary employee. It is impossible to assess one’s full potential and
weaknesses from a brief interview[1].
Hence, this practice is vital for both employee and employer to identify the
job profile and suitability for the position.
Though probation is indefinite [2],
in most countries it is less than one year. Some countries where they have
separate legislation to govern probationary employment have legislative
limitations on this period. Unlike a regular employee, an employer can dismiss
a probationary employee at any time during and at the end of the probationary
period on the grounds of unsatisfactory practice of work. In the case of Moosajees
LTD v Rasiah[3]
court held that the sole judge to decide whether the service of the probationer
is the employer (see Annexes A). This means, that during probation, the
security of tenure is not entitled, and the right to dismissal is solely wasted
with the employer.
However,
termination of a probationary employee cannot be done mala fide[4].
There is a conflict between this and the approach taken in many cases such as Ceylon
Cement Corporation v Fernando[5].
It is held, in this case, that an employer is not bound to show any good cause
for termination during or after the probationary period. But later concerning
the statement made in the case of Richard Perris and co v Jayarathna[6] “... mala fide can be inferred from irrelevant reason”. Fernando, J.
took a progressive decision in a decided case. Stated that “...an employer who
discloses reason cannot be in possession than if he had no reason. Also regarded
as acted arbitrarily”. This has changed the traditional viewpoint and
established a new ground that is favorable for probationary employees through
the absolute rights possessed by the employer under
common law.
Other
than the insecure tenure, many privileges are entitled to probationary such as
the minimum statutory wage, leaves, membership of employer trust fund, and
budget allowances[7].
Though they receive these benefits even according to international standards of
the International Labour Organization, it is still the discretionary power
of the employer to let them have them.
Case
study and Analysis.
Since
there are no exact statutory provisions to regulate probationary employment,
including Sri Lanka, interesting cases have come before the court to question
the basic aspects of probationary employment which appear to be introduced
through common law courts.
The
possibility of being dismissed before expiration is one of those controversial
questions. Ceylon Cement Corporation V Fernando
had addressed this matter along with determining powers possessed
by
the labor tribunal. Facts in brief; the corporation had dismissed an employee
who was employed as a deputy work manager before expiring his probationary
period on the grounds that his behavior adversely affected the discipline of the
corporation. To discuss this matter court referred to the previous case of Moosajee
LTD V Rasiah where it held, that “the employer has the
right to dismiss the probationer during the probationary period and is not
bound to provide any reason”. This decision was confirmed and held authority in
the case of S.W.R.D Bandaranayaka Memorial Foundation V M.P.C
Perera[8],
and held that “the capability of dismissing a probationer is possessed by the
discretion of the employer and it was well established by the case of Moosajee”. The court went further and determined that though, the Industrial Dispute Act no
43 of 1950 possessed an impressive amount of
power to the labor tribunal they cannot sit judgment over the decision of the
employer. The view in favor of the employer was backed by stating “If the
employer could have terminated the service without showing good cause, there is
no reason why the same provisions applied for terminating during the
probationary period” in the decision of Richard Peiris & co. Ltd
v Jayarathne[9].
The
approach is clear. But should the employer possess discretionary power to
determine the faith of an employee? Also, on the other hand, should the employer
take subjective approaches every time they come across to take a decision about
a probationary? Before answering that let us move on to another problem that
comes before the court regarding this subject.
Does
the employee receive his confirmation automatically without proper notification
from the employer? Hettiarachchi v Vidiyalankara
University[10] answered this question in favor of the employer. Facts of the case in brief
are; that Vidiyalankara University hired an assistant superintendent to its press on
a probationary employment basis. Two years later he was suspended and later
dismissed on the accusation of leaking university entrance examination papers.
The appointment letter mentions the probationary period is one year there for
the employee claimed that he is a confirmed worker. Wisdom v Robebourne
Finance and Investment [11],
an English case that has the same facts as the Vidiyalankara University
case, decided that ‘employees cannot claim automatic confirmation without the
proper consent of the employer’. However, it is compulsory to contain provisions in
the contract of employment to prove the worker is probationary. The same
approach was adopted in the Hettarachchi case and held that “...if a
probationer allows continuing after the probation expired, he continues in
service as a probationary”. (see Annexes B). Is this justifiable to presume renewal of the probationary period for an indefinite period?
State
Distilleries Corporation v Rupasinghe[12],
turned the tables and issued judgments that affect positively probationary employees (See Annexes C). Most importantly all the above
questions were answered in this case. In accordance with the judgment of Rupasinghe's
case, an employer is not entitled to dismiss a probationary employer mala
fide, and refusing to disclose his reason for termination must be considered
an act of mala fide. This approach is more justifiable than the decision in Fernando's
case we discussed earlier in this research. The theory of ‘the probationary
renewal’, for an indefinite period of time when the employer failed to express
his judgment on the performances of the probationer at the expiry of the
probationary period was also reconsidered and held the renewal is only valid
when it can properly be justified only. also, another positive approach to
justice. Does this mean the employer has to justify his decision objectively
every time? In Hettiarachchi and Fernando's cases, the court held
the employer had successfully established his objective viewpoint for his
action before the court. Rupasinghe followed a different approach
by letting the employee establish prima facie mala fide on his
dismissal. If he failed to do so the employer does not have to prove anything
to get a decision of favor him.
recommendation
Having
a great amount of discretionary power to judge, and dismiss an employee without
giving him a proper or any reason at all, which was done in many cases before Rupasinghe's
case, cannot be justified under any circumstances. It is against the rule
of natural justice “Audi alteram partem”, not letting know the reasons
and refusing to give a proper hearing. Also, none of these cases considered a
mechanism for defining the way to judge the ‘bona fide satisfactory’.
Therefore, no matter how the courts or status (if any) define the law, the
employer has an advantage of ‘old-school-common law’ interpretations. Though it
was rejected by the case of Dalgleish v Kew House Farm Ltd[13],
dismissing before the expiration of the probationary period, the employee has
lost the benefit of the entire period to prove his worthiness, it can bring out
as a legitimate expectation.
If
being confirmed at the end of the probationary period was recognized as a
legitimate expectation in the case of State Distilleries Corporation
v Rupasinghe, I don't see why the same theory cannot be applied to
prevent dismissal during the probationary period. Isn’t it also a legitimate
expectation to expect the full duration to prove his worthiness to the job
profile. Automatically extending the probationary period without considering a
limit is not practical as mentioned earlier concerning the judgment
of Rupasinghe’s case. There is a legitimate expectation to be confirmed
at the end of the probationary period. Also, according to International Labor
Law standards (See Annexes D), the probationary period must be limiter and
specific. Sri Lanka National Workers’ Charter of 1995, which follows the
standards of the International Labor standards, clearly specify the period for
probationary employment is one year. On the other hand, if exceeded, in Sri
Lanka, employees who work 180 days within one year are entitled to the coverage
of the “Termination of Employ of Workmen Act[14]”.
this will automatically make the status of the worker equal to a regular
employee.
When
considering other countries, that have similar legal traditions as Sri
Lanka, such as South Africa, they do enact separate legislation to govern
matters relating to probationary employment[15].
Hence, for better control of legal matters related to probationary employment, the researcher would like to recommend enacting separate legislation in Sri Lanka.
Also some progressive amendments to Section 32 A of the Industrial Dispute
Act No 43 of 1950 include the unfair dismissal of probationary
workers. furthermore, it is mandatory to determine problems related to this
subject concerning Principles of natural justice for better and
acceptable results. Since the world is moving towards a more humanitarian legal
tradition, Employment security which is recognized as a Human right, must
prevail under any circumstance to properly cater to contemporary labor market
requirements.
Conclusion.
The
status of the probationary employees in Sri Lanka has evolved trough out
history in a positive direction. From Fernando's case to Vidiyalankara
University case along with Moosajee’s, and Richard Perris and co case,
which led the judges to make decisions, that may have appeared justifiable at the
time, has changed its face to a more humanistic approach when it comes the time
to decide the Rupasinghe’s case.
Letting
one person or an organization make decisions with a higher discretion, which
the acceptance of the judiciary is not a proper application for the
contemporary labor market in Sri Lanka. Since the whole world is moving toward
a legal system where human rights are properly protected, Labour Law principles
also need to bend in this direction. If they are as rigid as they once were,
the general public will eventually stop believing them. According to Hanz
Kelson’s Pure theory of law When people stop obeying certain principles in
a legal system, they become invalid laws. Therefore, to maintain the validity
of laws they must be flexible according to the justice at the time.
Recommendations
on how the labor law should change were discussed under this research's “further analysis and recommendation” heading. When we referring
the given cases in the assignment it's quite clear the direction of the ‘wind’ of law is inclination towards the principles
of humanity and justice. As mentioned in the earlier paragraph employment security
is not something that gets to be decided by a single person anymore. It’s a
globally recognized human right. the probationary employee is an employee who
enjoys a secure job environment today and this trend needs to be Strengthened
with proper statutory provisions and more elaborate judicial principles.
Annexes
Annexes A
“The period of probation is a period of
trial during which the
probationer’s capacity, conduct or
character is tested before he
is admitted to regular employment. For the
purpose of
confirmation, the [probationer] must
perform his services to the
satisfaction of his employer. The
employer, therefore, is the sole
judge to decide whether the services of a
probationer are
satisfactory or
not."
(Moosajees
Ltd v Rasiah (1986) 1 Sri LR 365 (CA).)
Annexes
B
"... a person
appointed to a post on probation cannot claim
automatic confirmation
on the expiry of the period of probation,
unless the letter of
appointment provides that the appointer
shall stand confirmed in
the absence of an order to the contrary.
If a probationer is
allowed to continue on probation after the
period of probation has
expired, he continues in service as a
probationer."
(Hettiarachchi
vs. Vidyalankara University (1972) 76 NLR 47.)
Annexes C
…Accordingly, it is
noteworthy that, After ten years from Jayathunga case, the Rupasinghe
decision has challenged the traditional viewpoint of the court and
emphasized that even though the common law recognizes an absolute right to
terminate a probationary employee, under the Industrial Dispute Act of 1957 the
legislature has restricted the powers of employer considerably .Therefore the
probationary employee now has a right to challenge and unreasonable termination
and demand-instatement
(Ruwanthika
Ariyarathne, 'Employment Security of Probationary Workers In Sri Lanka: A
Comparative Legal Analysis' [2020] 13th International Research ConferenceAt:
Sir John Kothalawala Defense University)
Annexes D
The probationary or trial period is a
minimum employment period during which an employee is not fully covered by
employment protection legislation. Convention No. 158 provides that “workers
serving a period of probation or a qualifying period of employment, determined
in advance and of reasonable duration” may be excluded from all or some of the
provisions of the Convention (Art.2(2)(b)). Statutory provisions differ in the
exemptions that are permitted, including whether:
(1) protection against unfair dismissal
does not apply;
(2) different valid grounds for dismissal,
as compared to the general regime are applied;
(3) different notification or severance
pay rules; or
(4) various combinations of these cases.
The existence of such exemptions may lead
countries to place limits on the duration of the probationary or trial period.
Fixed-term contracts may sometimes be used
for the purpose of probation. Thus, for a more complete understanding of the
issue, the regulation of probationary periods should be examined jointly with
the regulation of fixed-term contracts.
('ILO-Eplex'
(Eplex.ilo.org, 2022) <https://eplex.ilo.org/probationary-trial-period/>
accessed 4 March 2022.)
Bibliography
Case
Laws
·
Re porcupine Area
Ambulance Service (1974) (2d)182 7 LAC.
·
Moosajees Ltd v Rasiah
(1986) 1 Sri LR 365 (CA).
·
Ceylon Cement
Corporation vs. Fernando (1990) 1 Sri LR 361.
·
Richard Pieris & Co. Ltd. v. Jayatunge
- ISriKantha's Law Reports 17.
·
S.W.R.D. Bandaranaike National Memorial
Foundation v. M.P.C. Perera. C.A. Nos. 694/80
·
Richard Peiris & Co. Ltd. v.
Jayatunga. Sriskantha's Law Reports Vol l.p t7
·
Hettiarachchi vs.
Vidyalankara University (1972) 76 NLR 47.
·
Wisdom v Robebourne Finance and investment
[1928]
S.S.L.R. 65.
·
State Distilleries
Corporation vs. Rupasinghe (1994) 2 Sri LR 395.
·
Dalgleish v Kew House Farm Ltd. [1982]
I.R.L.R. 251.
Other References
·
Termination of Employment of Workmen (Special
Provisions) Act, No.45 of 1971.
·
Ariyarathne R,
'Employment Security of Probationary Workers in Sri Lanka: A Comparative Legal
Analysis' [2020] 13th International Research ConferenceAt: Sir John Kothalawala
Defense University.
·
Ruhera, 'Probation Period
- Labour Law in Sri Lanka' <https://www.youtube.com/watch?v=uOheXMo4jxk>
accessed 1 March 2022.
·
'ILO-Eplex' (Eplex.ilo.org, 2022) <https://eplex.ilo.org/probationary-trial-period/>
accessed 4 March 2022
- Smit. P
& Grobler. J, 'Dismissal during Probationary Period of Employment in
- South
Africa: An International Perspective' (2021) 29 Afr J Int'l & Comp L
479
·
Chandran R, ‘The Probationary Employee’
(1993) 5SAcLJ 245
[1] Re
porcupine Area Ambulance Service (1974) (2d)182 7 LAC.
[2] Ravi Chandran, ‘The Probationary
Employee’ (1993) 5SAcLJ 245
[3] Moosajees
Ltd v Rasiah (1986) 1 Sri LR 365 (CA).
[4]
Paul Smit & Joaquin Grobler, 'Dismissal during Probationary Period of
Employment in
South
Africa: An International Perspective' (2021) 29 Afr J Int'l & Comp L 479
[5]
Ceylon Cement Corporation vs. Fernando (1990) 1 Sri LR 361.
[6] Richard Pieris & Co .. Ltd . v.
Jayatunge - ISriKantha's Law Reports 17.
[7] Ruhera,
'Probation Period - Labour Law In Sri Lanka'
<https://www.youtube.com/watch?v=uOheXMo4jxk> accessed 1 March 2022.
[8] S.W.R.D. Bandaranaike National Memorial
Foundation v. M.P.C. Perera. C.A. Nos. 694/80
[9] Richard Peiris & Co. Ltd. v.
Jayatunga. Sriskantha's Law Reports Vol l.p t7
[10]
Hettiarachchi vs. Vidyalankara University (1972) 76 NLR 47.
[11]Wisdom v Robebourne Finance and investment [1928] S.S.L.R. 65.
[12]
State Distilleries Corporation vs. Rupasinghe (1994) 2 Sri LR 395.
[13] Dalgleish v Kew House Farm Ltd. [1982]
I.R.L.R. 251.
[14] Termination of Employment of Workmen
(Special Provisions) Act, No.45 of 1971.
[15] Ruwanthika
Ariyarathne, 'Employment Security Of Probationary Workers In Sri Lanka: A
Comparative Legal Analysis' [2020] 13th International Research ConferenceAt:
Sir John Kothalawala Defense University.