Nigerian Law Forum
Probation has become a necessary aspect of the employment process in many organisations. Although probation has no statutory backing in the law, its practice in employment relationships has become widely accepted in different organisations. This article aims to answer some questions about the status of an employee on probation.
Probation is an initial period in employment where the skills, knowledge and expertise of new recruits in an organisation are tested to determine their suitability for the job before permanent employment.1 It is a period where the employer observes the employee keenly before he is employed.
Legally, there is no time frame for probation because no law provides for a probation period. However, the law has mandated employers to give every employee a contract of employment no later than three (3) months after commencement of his/her employment.2 Most employers have implied this three (3) months period to be the probationary period. Hence most employers usually fix the probation period from 3-6 months (or more, as the case may be).
In addition, determining the length of probation is at the discretion of the employer based on the nature of the job. This is because different job role demands a different level of expertise and skills from the employee. For example, the probation period of a cleaner in a law firm will be different from the probation period of an associate in the same firm.
At the end of the probation period, the status of the employee should be confirmed as that of a permanent employee and given a contract of employment, or his employment should be terminated.
Where the employer fails to confirm the employment status or terminate the employment at the end of the probationary period, it will be implied that the status of the employee has been confirmed to an employee under a contract of employment.3 This means the employee will be treated as a permanent employer and entitled to all the rights and benefits of an employee under a contract of employment.
Confirmation of employment in this context means that an employer is satisfied with the services of the employee while he was on probation and, as such, changed his status of employment from probation to a permanent worker at the end of his probation.
The employer has a prerogative right to confirm the status of the employee. This means that he is not compelled to confirm the employment of the employee at the end of the probation if he is not satisfied with his work. Wherefore, refusal to confirm the status of the employee or unnecessarily delays in terminating the employment of the employee by the employer would be accounted as automatic employment.4
As previously mentioned, it is important for an employer to confirm the employee's status at the end of his probation. However, an employer is not compelled to retain an employee whose service is dissatisfactory.5 Therefore, with reasonable notice, an employer can terminate the employee's employment while still on probation.
The justification for termination of employment while on probation lies in satisfying the purpose of probation. The purpose of probation is to determine the employee's suitability for the job. An employer, therefore, who lacks assurance of an employee’s suitability for the job role has the right to terminate his employment.
The procedure for terminating the employment of an employee on probation is not as rigid as an employee under a contract of appointment6 because he is not yet an employee who can be lawfully protected by the law.
Where an employer promotes an employee who is on probation, such an act singularly cannot imply confirmation of the employee’s status to that of a permanent worker. Although promotion shows proof of skill and merit required of an employee, it is not potent enough to change the probationary status of an employee to a permanent employee.7
In conclusion, for the status of a qualified employee with the requisite skill, knowledge and expertise to be changed upon successful completion of the probation period, the employer must confirm his employment as that of a permanent employee and give him a contract of employment. The employee can then come under the full protection of the law regarding employment relationship, as well as enjoy the rights and benefits of any employee under a contract of employment.
1 Al-Bishak v National Productivity Centre & Anor (2015) LPELR- 24659 (CA)
2 S 7 Labour Law Act 2004 (L1 LFN 2004)
3 Iwuji v Federal Commissioner for Establishment (1985) 1 NSCC 580
4 The Council of Federal Polytechnic, Ede & Ors. v. Johnson K. Olowookere  49 NLLR (Pt. 161) 144 at 170 – 171, Paras. D – E. The Court of Appeal held thus ‘where an employer had delayed unnecessarily in making up his mind whether to terminate or confirm an employee’s probationary appointment by keeping him in his employment and continuing to pay him for months after the probationary period had expired, he would be deemed by operation of law to have confirmed the employee’s appointment, and the doctrine of ‘estoppels by conduct’ would operate to prevent the employer from alleging and treating him as if he was still on probation. Delay defeats equity.
5 Ogbaji v. Arewa Textile Plc.  11 NWLR (Pt. 678) Page 326
6 Ibid (1)
7 BABA v N.C.A.T.C  5 NWLR (PT. 192) 388
Preye Ezonfade , LLB