THE POSITION UNDER THE LABOUR LAW STATUTES

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THE POSITION UNDER THE LABOUR LAW STATUTES

Section 61 of the Labor Institutions Act stipulates the situations in which the person can be presumed to be an employee. Read Section 61 (a)-(g) of the Labor Institutions Act, the provision contains the ingredients of the multiple test.

4.0 FORMATION OF THE CONTRACT OF SERVICE

Contract of service can be entered for manual labor or on clerical works. Contract of service or contract of employment as referred to under labor law is entered between the employer and employee.

Employer is defined under section 4 of the ELRA 2004 to mean any person including the Government and an executive agency, who employs an employee. The Public Service Regulation defines employer to mean a person or organization in the public service, with whom the public servant entered into a contract of service and who is responsible for the payment of salaries of such a public servant.

Employee is defined under section 4 of the ELRA 2004 to mean an individual who

  1. has entered into a contract of employment; or
  2. has entered into any other contract under which-
    1. the individual undertakes to work personally for the other party to the contract; and
    2. the other party is not client or customer of any profession, business, or undertaking carried on by the individual; or
    3. c) Is deemed to be an employee by the Minister under section 98 (3)

Employee is defined under the Public service regulations to mean any person termed by the Act as the public servant.

5.0 PROBATIONARY PERIOD

When parties enter into the contract of service there is the need for the parties to understand each other in terms of behavior and skills. This makes an employee to subject himself to the probation period before is actually confirmed for permanent basis. Rule 10 of the employment and Labor relations (Code of Good Practice) Rules, 2007 [Government Notice No 42 of 16th February 2007 (herein under referred to as the Code of Good Practice states under sub rule 3 that the purpose of probation is normally to enable the employer to make an informed assessment of whether the employee is competent to do the job and suitable for the employment. Under sub rule 4 the law is to the effect that the probation should be of a reasonable length of not more that 12 months having regards to the factors such as the nature of the job, the standard required, the custom and the practice in the sector.

For the public servants the same is provided for under rule 14 of the Public Service Regulations that where any person is first appointed in the public service on pensionable terms, he shall serve a probationary period which shall depend on the scheme of service and shall not exceed twelve months

The Public Service Regulations gives power to the immediate supervisor of the probationary employee to reduce the probation period if the public servant concerned has fulfilled all the requirements necessary to be fulfilled before his confirmation and if either

  1. he has previously served in that office or in the similar office on non pensionable terms or
  2. the reduction of probationary period is necessary for administrative reasons

The proviso under the same rule provides that no probationary period shall be reduced under this regulation by a period exceeding the period which the public servant has served in such office or a similar office on pensionable terms or a period of six months whichever hall be the less.

The Code of Good Practice further states that an employer may extend the probation of the employee save that there is consultation to the said employee, the extension of probation is supposed to be for a reasonable time and this is done where the employer has not yet been able to assess whether the employee is competent to do the job or suitable for the employment[1].

For the public servant in case the immediate supervisor is of the opinion that the probation period has to be extended or the probationary employee is to be terminated ; before terminating the employment or extending the probationary period the immediate supervisor has to inform the public servant of his intention in writing.[2]

The employer s during the probation period shall[3]

  1. Monitor and evaluate the employee’s performance and suitability from time to time
  2. Meet with the employee at regular intervals in order to discuss the employee’s evaluation and to provide guidance if necessary. The guidance may entail instruction, training and counseling to the employee during probation

6.0 CONFIRMATION OF THE PROBATIONARY EMPLOYEE

This is well dealt with by the Public Service Regulations; where the authorized public servant is of the opinion that a public servant has successfully completed a probationary period, he shall confirm such a public servant to the appointment with effect from the date of his probationary appointment Rule 14 (7) of the Public Service Regulations

The case laws are to the effect that confirmation is formally effected by the employer serving his employee a note to that effect. The case law further states that the expiry of the probationary period does not automatically make such a probationer a permanent employee; that will be so if the rules appointing a probationer states to that effect.[4]

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