The probationary period for employment contracts for an unspecified period of time should not exceed three months with respect to unskilled employees and twelve months for skilled employees. These maximum probationary periods have been confirmed by our Industrial Court of Botswana in several cases. In addition to the above, it is mandatory that the prospective employer inform the prospective employee in writing, of the length of the probationary period before entering into a contract of employment. Section 20(3) of the Employment Act does not specify what form the written notification of the probationary period must be.

The Industrial Court has stated that such written notification can be contained in a separate letter offering employment or in the contract of employment or employment card before it is signed. Non-compliance with section 20 (3) will render the probationary period null and void, and therefore unenforceable. If the probation period is not provided for, the contract of employment will be regarded as a contract without a probationary period. Furthermore, where a contract of employment is terminated during a probationary period by either the employer or employee by not less than 14 days’ notice, such contract shall be deemed to have been terminated with just cause and accordingly the party terminating is not obliged to provide reasons for the termination in terms of Section 20 (2) of the Act.

Post probation

It is common to find a clause that provides that “Either party may terminate this contract of employment by giving the other party one (1) month written notice”. That means an employee may tender resignation by giving one month’s notice or pay one month’s salary in lieu of notice. The employer may also terminate a contract of employment without reason provided that they give one month’s notice.

In July 2019 the Court of Appeal pointed out that the foregoing position changes depending on the court of first instance. If an aggrieved employee approaches the High Court for redress, then the approach is based on contract law, thus, an employer may issue a notice of termination without giving reasons and an employee does not need to be given an opportunity to make representations against termination. However, if an employee approaches the Industrial Court, principles of equity are applied. Most employees usually approach the Industrial Court as opposed to the High Court, for redress in labour related issues. While no disciplinary procedure would be required, just cause and fair procedure are always necessary. Just cause involves the consideration of various issues, for example, the relative bargaining power of the parties (employer and employee).

A senior manager or highly qualified professional may have virtually equal bargaining power as the employer. In such cases, the giving of a notice itself might be held to constitute just cause, reflecting the employer’s view that termination is necessary to maximize operational efficiency, while in other cases it might not be. Clause 3.6.3 of the Minister’s code of good practice provides that there are normally only three recognized grounds of dismissal for a fair reason, namely, (a) misconduct; (b) incapacity, including poor performance, ill health and injury; and (c) operational requirements. In a nutshell the clause that “each party may terminate a contract of employment” is more favourable to the employee if they approach the Industrial Court. An employer who simply exercises the right to terminate by giving notice, faces the extra burden of demonstrating (above the contractual agreement) that the decision to terminate is fair and just (particularly at the Industrial Court). This new position is an apparent amelioration of economic imbalances in employment conditions.