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‘PROBATIONARY EMPLOYEES’ CONTRACTS CANNOT BE TERMINATED WILL-NILLY’

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MBABANE – Employers will no longer have powers to terminate services of employees who are on probation willy-nilly.


This comes after a full bench of the High Court found that Section 35(1) of the Employment Act was inconsistent with the Constitution.
Parliament has been called to amend this section, which the court found was by extension, null and void.


Section 35 (1) of the Act provides as follows: “ During any period of probationary employment as stipulated either in the form to be given to any employee, or in a collective agreement governing his terms and conditions of employment, either party may terminate the contract of employment between them without notice.”


The full bench, which consisted of Judge Jacobus Annandale, Judge Nkululeko Hlophe and Judge Ticheme Dlamini, found that this section was inconsistent with Section 14 (1) of the Constitution


Section 14 (1) of the Constitution under the Fundamental rights and freedom of individuals provides that:  “The fundamental human right and freedoms of the individual  enshrined in this chapter are hereby declared and guaranteed, namely; respect for life, liberty, right to fair hearing, equality before the law and equal protection of the law.”


Judge Dlamini, however, stated that in his view, differential treatment given to probationary employees viz permanent employees, does not constitute discrimination and there was nothing wrong in placing probationary employees in differential treatment with permanent employees.
“It appears to me that what appears to be an offending aspect in Section 35(1) of the Employment Act, is the condition to the effect that the employment of a probationary employee can be terminated without notice. That is what is being misconstrued, in my view, when interpreting Section 32(1) of the Act,” said Judge Dlamini.

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