Probation Period and termination of Probationers contact of service

By Jayasiri Pathiraje
Manager-Compliance PQHRM IPM Dip in Mgt (HRM) - SLIATE CMA INTER -SCMA PgD in Labor relation & HRM University of Colombo (Reading) Jp.pathiraje@gmail.com 0094 716686810 Definition for Probation According to the oxford dictionary probation means the testing of conduct or character of a person . However probationer is a permanent employee. So far local law does not determine that the certain period for the probation period. Here it is going to addressed the termination of the probationer , this can be vary as termination the service of probationer after completing the probation period , within the probation period or after extending the probation period with or without any notification Who is the Sole judge for deciding the satisfactory or unsatisfactory of the probationers performance? In the Case of CEYLON CEMENT CORPORATION V . FERNADO {1990} SRI LR 361, it is clearly noted that the employer is the sole judge to decide whether the service of probationer are satisfactory or not. A probationer has no right to be confirmed in the post and the employer is not bound to show good cause where he terminates the service of a probationer at the end of the term of probation or even before the expiry of that period. The labor tribunal cannot sit in the judgment over the decision of the employer. It can examine the ground of the termination only for the purpose of finding out whether the employer had acted mala fide or with ulterior motives or was acted by motives of victimization. There is no law which requires that an employee should be forward in written so that he may adjust himself to the requirement of the service. The word probation implies that he is on trial. And also In Richard Peiris & Co. Ltd., v. Jayatunga , it was held that a period of probation necessarily entails that the probationer should satisfy the employer before the employer decides to affirm him in his employment which would place the employer under various legal restraints and obligations and, therefore, any employer should have the right to discontinue a probationer if he does not come up to the expectations of the employer. There is no requirement under the law that an employee should be forewarned orally or in writing so that he may adjust himself to the requirements of his service. The very word 'probation' implies that he is on trial. Can a probationer imagine that he/ she confirmed in the post after the expiration of probation period?

A person appointed to a post on probation cannot claim confirmation on the expiry on the expiry of the period of probation, unless the letter of appointment provides the appointee shall confirm in the absence of an order to the contrary. If a probationer is allowed to continue on probation after the expiration of the probation has expired, he continues in service as a probationer. (See A.R. Hettiarachchi v the Vidyalankara University) Termination of service of probationer within the probation period.can or cannot? A probationer has no right to be a confirmed in his post and the employer is not bound to give any reason to why he does not confirm the probationer. The employer is the sole judge to decide whether the service of a probationer is satisfied or not. The employer is not bound to show good cause where he terminates the service of a probationer at the end of the term of probation or even before the expiry of that period. The tribunal cannot sit in judgment over the employer. It can examine the ground of termination only for the purpose of finding out whether the employer had acted mala fide in doing so. Finally (according to the Brown & Co Ltd v Samarasekara) the learned judge pointed out Unless the letter of appointment otherwise provide, probationer is not entitled to automatic confirmation on completion of the period of probation. If then he is allowed to continue his service , he continues as probationer Even in the absence of any terms and conditions , a simple probation clause confers on the employer the right to extend the probationer The employer is not bound to show good cause for termination a probationers service. The labor tribunal may examine the grounds of finding out whether the termination was mala fide or amounted to victimization or an unfair labor practice. The question whether the probationers service was satisfactory is a matter for the employer. If cannot be objectively tested. If would be inequitable and unfair, in the absence of mala fide, to foist the view of the tribunal on the management. A suggestion of mala fide is not sufficient. the tribunal must make a finding that the termination of a probationers service was actuated by mala fide or ulterior motives

Reference Industrial Dispute Act and Related judicial Decisions by EFC Author A.A champika Jayasinghe 2010. www.lawnet.lk Hettiarachchi V. Vidyalankara university 76 NLR 47 Ceylon ceramics corporation v Premdasa (1986) 1 Sri LR 287 (C.A) Elsteel Ltd V Jayasena S.C Appeal No 20/88-S.C Minutes of 06.04.90 Richard Peiris & Co. Ltd., v. Jayatunga