Uncertainties in the employer-employee relationship are few and far between and only few facets of this unique relationship are unclear. Not the least of which is the meaning of skilled vs unskilled labour for purposes of probationary periods when negotiating employment contracts. We at Bookbinder Business Law thought some guidance on this specific question would be helpful to both employers and employees alike.
What is the probationary period?
Probation is the period of time at the start of employment when an employee and an employer are both given the opportunity to assess suitability to the role after having first-hand experience. On the one hand, the probationary period enables the employer to assess if the employee is capable and competent to perform the work for which he will be employed, before taking them into permanent employment. On the other hand, the probationary period gives the employee the opportunity to assess, before taking up permanent employment, if he/she would wish to work for the employer and to do the work for which he/she will be employed under the stated conditions of employment.
Length of Probationary Period
Section 20(1) of the Employment Act [Cap 47:01] (the Employment Act) provides that in the case of a contract of employment for an unspecified period of time (other than a contract of employment for a specified piece of work, without reference to time), the probationary period shall not exceed 3 months in the case of unskilled employees, and 12 months in the case of skilled employees.
Skilled vs Unskilled
The question that arises, then, is: for purposes of setting the length of the probationary period, who is a “skilled” employee and who is an “unskilled” employee?
Our courts have addressed this question, and in doing so have admitted that the answer is not as clear as one would think. In order to determine whether an employee is a skilled or an unskilled employee, the court will consider the following, amongst other considerations:
(a) the nature of the employment of the said employee;
(b) his/her qualifications, if qualifications are required for such employment;
(c) what training the employee has undergone for such employment; and
(d) what experience the employee has in such employment.
Where the nature of the employment, qualifications (if required), prior training and experience of the employee are not of such a nature or demand that they require a high level or skill, expertise, training, experience, practice or ingenious, it is likely that that employee will be regarded as “unskilled.” In that instance, probation must not exceed 3 months immediately after commencement of employment.
On the contrary, where the nature of the employment, qualifications, prior training and experience of the employee are of such a nature or demand that they require a high level or skill, expertise, training, experience, practice or ingenious, it is likely that that employee will be regarded as “skilled”. In that instance, probation must not exceed 12 months immediately after commencement of employment.
Important Points to Note
• An employer is required to notify the employee in writing of the length of the probationary period prior to the commencement of the contract of employment. Failing to do so is an offence under the Employment Act attracting a fine, imprisonment or both;
• The time stipulated in section 20(1) of the Employment Act are the upper limit of the probationary period. An employer and employee are at liberty to agree to a probationary period below the stipulated periods but agreeing to a period above the stipulated periods would be unlawful and unenforceable; and
• An employer may extend the probationary period, however any extension must not have the effect of extending the probationary period beyond the upper limit.
We trust this news flash has been of assistance in addressing any questions one might have with respect to probationary periods and the meaning of skilled vs unskilled labour. For any further information, please feel free to contact Andile L. Mthupha at andile@bookbinderlaw.co.bw or +267 391 2397 or Tefo Gaongalelwe at tefo@bookbinderlaw.co.bw or +267 391 2397.