Probation Period: What to know as an Employee

The use of a probation period for new employees has become a normal practice over the years and many organizations use it as a window period to evaluate employees before placing them on a permanent contract of employment. The essence of this is not far-fetched, the recruitment process is usually not perfect and not all near recruits would deliver everything they promised. The article considers the meaning of probation period, rights of employees during the period, and the options opened to an employer after the probation period.

Meaning of probation period

Probation period is a trial phase to test the competence and ability of new employees which usually lasts for three or six months and in some cases, a year. Employees during this period are usually exempted from enjoying certain rights and benefits in the organization, paramount of which is the annual leave.

In Baba v. C.A.T.C[i], the Court of Appeal defined probation as “the initial period of employment, during which a newly transferred or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such positions. In other words, it is a period of trial or test so to say.”

The Nigerian Labour Act doesn’t have any express provision on the maximum limit of probationary period. However, the best practice across the world and in most organizations in Nigeria is to provide for it under the contract of employment, which is usually not more than three to six months. The 90 days probation period is widely in use, although there are roles where the period could last as long as 2 years.

The importance of probation periods

In case you are wondering if you need to place your employees on probation, it would interest you to know that it was found in a research study conducted in 2014 that 18% of new employees fail probation. While there could be many reasons for this, one vital point is the fact that recruitment processes are not always perfect. Employees who tick the box for knowledge required for the job might not have the emotional intelligence required to discharge their duties, and vice versa.

Probation period also enables employers to evaluate the performance of their employees and test if they have the necessary qualities to match the organization’s culture.

Rights of employees during probation periods

It is an established fact that an employee on probation doesn’t enjoy all the benefits that pertain to the employment, unlike his confirmed counterpart. In Bishak v. National Productivity Centre & Anor[ii], the Court stated that “an officer on probation does not enjoy the same condition of service with an officer whose appointment has been confirmed. His status in the establishment is more or less temporal during the period of probation hence the process of his removal is not subject to strict adherence to rules as is the case with a confirmed officer.” However, the fact that an employee is still on probation doesn’t imply that he is not entitled to any rights in the organization.

It is a normal practice that where an employee becomes liable to a third party for a wrong committed during the course of his employment, the employer is generally held vicariously liable for the wrongs of his employee. See Nigerian Navy v. Akpan & Anor[iii]. An employee under probation will also enjoys the protection of this principle due to the special relationship that exists between him and the employer.

Employees who are still on their probation periods are generally entitled to employment benefits such as wages, sick leave, maternity leave, and other benefits stated in their contracts of employment.

The law also protects an employee from unlawful discrimination on the grounds of sex, religion, place of origin, ethnic group or political opinion despite being on probation. The right to freedom from discrimination is an inalienable right that cannot be denied an employee on the grounds of being a probationer.

Dismissal during the probation period

First and foremost, it is important to establish that an employer is not under any obligation to keep a probationer till the end of the probation. That is, once the proper procedure has been followed, a probationer’s employment can be validly terminated.

This has been confirmed in the case of Ihezukwu v. UNIJOS[iv], where the Court held that, “The essence of a probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period. Where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not give the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiry of that period.”

The Court went further to say that, “Where there is a notice of dismissal or termination of appointment of an employee by the employer…the only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis.”

It is clear from the quotes above that although the employment can be terminated during probation, the employer still has to ensure that the proper procedure is followed. However, the National Industrial Court of Nigeria took a U-turn when it held that there is no need for a termination notice before an employer can dismiss an employee during probation period.

In the case of Ogbonna v. Neptune Software Limited,[v] Justice J. D. Peters stated as follows, “An employment on probation is akin to a temporary employment; an employment under observation. An employer may decide whether or not to confirm such an appointment where the attached conditions are not met. I may as well add that an employer is not under an obligation to give notice of termination to an employee who is on probation until the employment is confirmed. This is because the employment relationship between the parties is an inchoate one.”

Respectfully, the above judgment doesn’t seem to represent an accurate position of the law on the subject. This hereby calls for a comprehensive review of the Nigerian Labour Act to include clear and succinct provisions on the principles governing the probation period of employment in Nigeria.

What happens after the probation period?

Since the essence of probation period is to give an employer the chance to evaluate the suitability of an employee for the role, it implies that the employer is under a bound to decide whether to confirm or terminate the employment immediately after the probation. In a situation where an employer fails to take a decision immediately after the end of the probation period, he is deemed to have impliedly confirmed the employment.

In Obafemi Awolowo University v. Onabanjo[vi], the Court, per Akpabio, JCA stated that, “The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppels by conduct” would operate to prevent the appellant from alleging and treating him as if he was still on probation. “Delay defeats Equity.”

Conclusion

The article has examined the rights of an employee during the probation period. One important fact to note is that although an employee during probation might not enjoy all the rights that come with the employment, he is nevertheless an employee for all intents and purposes.

[i] (1985) 5 NWLR (Pt. 43) 514 at 527

[ii] (2015) 57 NLLR (Pt. 194) 1

[iii] (2021) LPELR- 55838 (CA)

[iv]  (1990) 3 NSCC 80

[v] (2016) 64 N.L.LR. (Pt. 228)

[vi]  (1991) 5 NWLR (PT 193) 549 @ 570, paras D – E