Can an employer terminate an employee on 14 days’ notice during a probationary period?

In terms of the Employment Act [Cap 47:01] (the Act), an employee may be employed on a probationary basis. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment. The probationary period should be determined in advance and must be of reasonable duration, determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment. In the event the employer considers the employee’s performance deficient, the employer may, subject to Section 20 (2) of the Act, terminate the employee’s contract of employment during the probationary period.

Section 20(2) of the Act provides that where a contract of employment is terminated during a probationary period “by either the employer or employee under section 18 or 19 by not less than 14 days’ notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause and neither the employer nor the employee shall be required to give any reasons therefore”

In reconciling section 20 (2) of the Act with section 18 or 19 of the Act which provide for termination aligned to the period within which an employee is paid a wage, the Industrial Court in the case of?Diau v Botswana Building Society held that “…s 20(2) does not however suggests that any employee on probation should be given notice of 14 days. If he or she is a monthly paid employee he or she is entitled to a one month’s notice.” The effect of section 20 (2) is not to circumvent sections 18 and 19 of the Act, but to create a minimum threshold in the event that section 18 and 19 provide for a lesser notice period than 14 days. The court in Mosedame held that the conclusion that only 14 days’ notice is required when terminating a contract of employment during a probationary period is incorrect. The notice period applicable during a probationary period is determined by reading section 20 (2) together with sections 18 and 19 of the Act. Therefore, in practice section 20 (2) of the Act as read with section 18 of the Act means the following:

• An employee who is paid daily wages or weekly shall be terminated on at least 14 days’ notice during a probationary period.
• An employee who is paid every two weeks or monthly must be given at least 14 days or one month’s notice respectively during a probationary period.

The above notice periods will be sufficient for both sections 18 and 20 (2) of the Act as they are “not less than 14 days’ notice“. It is important to remember that the 14 days’ notice period is a minimum threshold and not in addition to the notice period one would have been entitled to.

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