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Is probation before employment lawful?

BY: Mirror Lawyer

Dear Mirror Lawyer, Is it lawful to put workers on probation before being employed?
Dan Apietu, North Industrial Area, Accra.

Dear Dan, Probation is found in many contracts of employment or collective bargaining agreements.
It is an appointment into an office or position in an establishment for a limited duration, usually between three to six months after which the employer will decide whether to confirm or dispense with the services of the worker.

During the period of probation, the worker must be able to prove by his conduct, character or qualification that he is the fit and proper person to fill the position on a permanent basis.

Section 98 of the Labour Act, 2003 (Act 651) for example provides that the contents of a Collective Agreement under the Act may include provisions for the period of probation and conditions of probation.

The reason for probation in many occupations is to give management the freedom to ascertain if the worker will prove to be efficient to the task he or she is being assigned before confirming the employment on a permanent basis.

There is nothing illegal or discriminatory about probation. It is a ‘try me’ process and workers on probation enjoy rights of full time workers such as the right to work under satisfactory safe and healthy conditions, receive pay for work done, medical treatment, rest, leisure, public holidays, training for the development of his or her skills and also receive information relevant to his or her work among others.

In the Ghanaian case of Societe General de Compensation v. Ackerman (1972) 1GLR 413, a contract was drawn in the French language but executed in Ghana between an Israeli national and an external French company.

The plaintiff, who was on probation, had his contract terminated before the end of the probation period. He brought an action against the defendant company for wrongful dismissal.

The Court of Appeal held that a probationer, generally, is not without a vestige of legal right during the probation period.

He has the right to receive any contractual remuneration and any benefits accruing. Beyond that, he may reasonably expect to be confirmed in his appointment upon satisfactory completion of the probation period.

The main difference between a person on probation and a permanent worker is that a person on probation may have his or her employment terminated at any time during the probationary period or before the appointment is confirmed without notice and without any compensation whatsoever.

Where the probation is for a specific period and the time expires and the worker’s services is not confirmed or dispensed with, there would be a presumption that the appointment has been confirmed into a permanent employment.

This presumption, however, can be rebutted by the employer. Section 75 of the Labour Act 2003, Act 651, supports this position so far as it affects temporary workers and not those on probation.

It provides that if a worker is employed on a temporary basis by the same employer for a continuous period of six months or more, that worker's employment would be deemed to have been confirmed into