Probation period is a period within which an employee is expected to prove that he is capable of handling a particular position for which he has been employed. It is a timeframe which allows the employee to demonstrate his suitability and ability to perform the duties and responsibilities associated with the position. This period allows the employer to assess the employee’s work performance and overall adaptability to the organization’s goals and objective which would form the basis for making his employment permanent.
It is a period in which an employee is allowed to prove their suitability for a job. During this period, the employee is closely monitored and assessed in terms of their job performance. If they do not meet the expected standards or fail to satisfy their employer, the employee may be dismissed or the probationary period may be extended. It is noteworthy that this period typically lasts 6 months to a year.
In the case of Baba v. Nigerian Civil Aviation Training Centre, the court while adopting the Black’s Law Dictionary definition of the word ‘probation’, described a probationary period as:
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 duties of the job or position before he will be considered as permanently employed in such position.
Furthermore, the National Industrial Court of Nigeria in the case of Bishak v. National Productivity Centre & Anor, while determining the nature of probationary employment held 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”.
LEGAL FRAMEWORK FOR PROBATION PERIOD OF EMPLOYEES IN NIGERIA
Statutorily, there is currently no provisions in Nigeria for employee probationary periods. Thus, issues regarding probationary period are usually contained and regulated by the contract of employment and as such are binding on the parties.
It is however worthy of note that employee probationary period is usually implied by employers, making reference to Section 7 of the Labour Act, 2004, which provides that employers are to give every employee a contract of employment no later than 3 months after commencement of his/her employment.
Essentially therefore, the primary framework governing relationship between employers and employees is the employment contract, and the courts has severally in a plethora of cases confirmed the validity of probationary period of employees in Nigeria. This means that the laws governing or regulating this period are: the employment contract, the National Industrial Court of Nigeria as well as case laws. In the supreme court case of Ihezukwu v. UNIJOS, the court while recognizing probationary employment, posited thus – “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 above goes further to show that Nigeria’s jurisprudence as regards probationary period of employees is strictly guided by the employment contract/agreement executed between the employer and employee and in the event of any issue arising therefrom, will be subject to interpretation by the National Industrial Court of Nigeria.
IMPLICATIONS OF FAILURE TO FORMALLY CONFIRM, EXTEND OR TERMINATE THE APPOINTMENT OF A PROBATIONARY EMPLOYEE
It is worthy of note that at the end of a probationary period of employment, there are three primary or potential outcomes depending on the performance of the employee – A formal confirmation of the employee as a permanent employee, an extension of the probationary period to aid further evaluation or termination of the employment entirely. Where there is delay in confirmation without termination, and the situation is not addressed promptly, it may result in the employee being deemed a confirmed staff member by default. In other words, there is an implied confirmation of employment where the employer is silent following the expiration of the probation period.
Furthermore, an employee on probation is considered a confirmed employee if his or her employer keeps him or her on after the probation period ends without informing him or her of the results of the probationary test or terminating his or her job.
In the Court of Appeal case of Reliance Telecom Ltd v. Adegboyega, the court Per Jamilu Yammama Tukur, JCA held thus:
“…In Obafemi Awolowo University v. Dr. A.K Onabanjo (1991) 5 NWLR (Pt. 193) pg 549 at 569 paras. G-H & pg 570 paras. D-E. Akpabio, JCA (as he then was) in the above case, held thus ‘the appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s probationary period. By keeping him in his employment and continuing to pay him in his employment 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 “estoppel by conduct” would operate to prevent the appellant from alleging and treating him as if he was still on probation. “Delay defeats equity”. From the above decision of the Appeal Court, I am of the view that the claimant’s appointment was confirmed by the defendant immediately after the expiration of the three years’ probation.”
In furtherance of this position, the National Industrial Court of Nigeria in the case of Amanze v. Union Bank, per Justice Essien held thus:
“…I must add that where the terms of an employment contract such as the one under consideration in this judgment stipulate for confirmation after a period of probation, unless there are reasons to extend the probation period which must be in writing and duly notified to the employee, the defendant is under a duty to confirm the employee after the period of probation. It would be a breach of contract by the defendant for failing to confirm the claimant in this action. The claimant was employed on 9/5/2014. The confirmation of the claimant was due on 8/11/2014. The defendant failed to confirm the claimant or terminate her appointment. The defendant continued to keep the claimant in his employment up to 13/7/2017 when they terminated the claimant vide claimant exhibit D5. The claimant is deemed to have been confirmed by operation of the law.”
Hence, an employer who allows the employment of an employee to continue in full view of the stipulation of the probationary period must be taken by his conduct to have fully assured the employee that his appointment had been confirmed.
DURATION/LENGTH OF PROBATIONARY PERIOD
Since Probationary period of employment is unknown to our statutory laws in Nigeria, and is strictly governed by agreement of parties which is evidenced in the contract of employment, it is safe then to assert that the duration or length should be as agreed or stipulated in the contract.
However, as earlier pointed out, Section 7(1) of the Labour Act is implied to have made provision for the length of probation period. For ease of reference, it provides thus: “Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying the particulars of terms of employment”. This three-month period has been interpreted to be a probation period under Nigerian employment norm. The law does not prescribe the maximum length of probation periods, but in practice employees undergo probation for a period between three (3) to six (6) months.
According to Chianu, there is no fixed period of probation, it differs from one employer to another. It should be tied to the nature of the employer’s undertaking and the service to be rendered. The virtue, quality or attribute an employer desires from a prospective employee may be a determinant for the length of time to place him or her on probation.
It is necessary to state that the probation period agreed by the parties must be reasonable so as to prevent the employer from hiding under the guise of probation to rip off an employee.
Termination of Employment during Probation
Generally, the law is that an employer can terminate the employment of an employee for any reason or no reason at all. Thus, it is a cardinal labour law principle that an employer cannot be compelled to remain in the employment of an employer he is no longer willing and ready to work for.
In the case of Kusamotu v. Wemabod Estate, the Court pointed out that the mere fact that an employee is placed on a probationary appointment does not mean nor could it be implied that, his appointment cannot be fully terminated within the probationary period on reasonable notice as the purpose of putting the employee on probation is to give the employer an assurance that the employee is a fit and proper person to be placed on permanent/confirmed employment.
What this essentially entails is that though a probationary employee may have reasonable expectations of his employment being confirmed, it also does not strip the employer of his right to hire and fire at will whenever the situation arises.
CONCLUSION
Probationary employment has become increasingly popular in Nigeria owing to the fact that it has been observed to be a viable way for employers to assess the suitability of an employee for a particular permanent role. It is also worthy of commendation that though the statutes do not specifically make provisions for probationary employment in Nigeria, the National Industrial Court of Nigeria has integrated certain international principles from the International Labour Organization (ILO) and global best practices into its decisions.
It is however necessary to draw the curtain on this discourse by stating that employers who are considering implementing probationary employment should ensure to establish a clear and unbiased policy framework for probationary employees, and employees should ensure to leverage the opportunity by being proactive and striving to learn and develop in order to meet the expectations of the employer.
Chinaza is an associate in the Employment and Labour Practice Group at the Trusted Advisors
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