Probation Employment

New employees will normally be given a probationary period before they are hired as
permanent employees of the company.

During this probationary period the employer will check out whether that person is a
good fit for the position. For that his skills, abilities, disciplines, characteristics as well
as the interest towards the job are considered and assessed by the employee.

Therefore, a probationer is a one who is being assessed by the employer on his

abilities, disciplines and characteristics. If the employer is not satisfied with the
probationer the employer can terminate the probationer. But it is said that giving a
sole discretion to the employer upon probationer is not suitable.

And also there are no provisions regarding the probationers in Industrial Dispute Act
or any other acts. When an employee is given an appointment letter, he is subjected to
a 6 months or one year probation period. Until the employee received the confirmation
letter from the employer he is still considered as a probationer, even though his
probation period is over. If the employer wants, he can extend the probation period.

The main disadvantage of a probationer is that he is not entitled to bonus, paid off
leaves, promotions, and transfers. In that situation employers can have the opportunity
to exploit the employees within probationary period.

As there are no legal provisions regarding probationers we have to look into

judgments to consider the legal status of the probationers. Sri Lankan upper courts
mostly have followed the judgments of Indian courts.

Venkatacharya v. Mysoor Sugar Company

It was held that the probationer is not in the same position as others in service and he
is in a state of uncertainty. Prima facie probationer’s rights and claims against the
employer are less than those of others.

Richard Peiris v. Jayathunga

It was held in this case that,

 If a probationer does not come to the expected level, the employer can
terminate him.
 The employer shall terminate the employee during the probation period, but he
has to compensate the probationer for the remaining period.
 Before the termination, the employer is not bound to give a written or verbal
explanation to the probationer.
[By- Sheran Dewapriya Hettiarachchi]
Moosajees v. Rasiah

By following the Richard Peiris v. Jayathunga case, it was held by the court as
follows,

 A probationer has no right to be confirmed in his post.

 The employer is not bound to give any reason as to why he does not confirm
the probationer.
 The probationer should provide his service as satisfactory to the employer.
 The employer is the sole judge to decide whether the services of a probationer
are satisfactory or not.
 The tribunal cannot sit in judgment over the decision of the employer.
 It can examine grounds of termination only to find out whether the employer
had acted mala fide.

Hettiarachchi v. The Vidyalankara University

A probationer cannot claim automatic confirmation on the expiry of the probationary

period unless the letter of appointment is provided. If a probationer is allowed to
continue on probation after the probationary period has expired, he continues in his
service as a probationer.

However the above position relating to the probationer was changed with the
following judgment which was decided in 1994.

State Distilleries Corporation v. Rupasinghe

It was held that at the end of the probationary period if the employer is bona fide not
satisfied with the work and conduct of the probationer he can dismiss the probationer
or extend the probationary period.

The decision of ‘If a probationer is allowed to continue on probation after the

probationary period has expired, he continues in his service as a probationer.’ which
was decided by Hettiarachchi v. The Vidyalankara University was held as an unfair
principle to follow.

It was held that the decision of ‘the employer is not bound to give any reason as to
why he does not confirm the probationer’ which was decided by Moosajees v. Rasiah
and Richard Peiris v. Jayathunga should not be followed.

It was further held that it is unfair for the probationer that he is not given a written or a
verbal reason as to why he does not confirm the probationer. The probationer shall get
a chance to know what was expected from him. If a probationer does not come to the
expected level after knowing his deficiencies, the employer can dismiss the
probationer or extend the probationary period. It is useless to extend probationary
period unless the employer shows the deficiencies of the probationer.
[By- Sheran Dewapriya Hettiarachchi]
The employer is bound to disclose his reasons for dismissal to the court if it is
required by court in those matters relating to probation.

If the employer having acted mala fide and terminates the probationary period the
probationer can go to a Labour Tribunal and the burden of proof lies on the
probationer. A Labour Tribunal has the jurisdiction to examine whether the
termination is mala fide.

Every employee who is terminated his services under section 31 B (1) of Industrial
Dispute Act can make an application to a Labour Tribunal. Therefore the probationers
also can go to a Labour Tribunal.

When an application is made to a Labour Tribunal, it shall make all such inquiries and
hear all the necessary evidence and make a just and equitable order.

But a probationer can seek the relief from a Labour Tribunal only if he can show by
the evidence that the employer had acted mala fide. However it is difficult to prove for
a probationer that the employer acted mala fide as other employees working under the
employer may not come to the court and give evidence against the employer.

University of Sri Lanka (Now the University of Kelaniya) v. Ginige

It was held by a 3 bench that a Labour Tribunal does not have jurisdiction over a
decision of an employer unless the probationer proved that the employer acted mala
fide. If the employer has acted mala fide the probationer has a right to relief.

Anderson v. Husky

It was held that the probationer must prove his injustice with evidence.
By- Sheran Dewapriya Hettiarachchi

Attorney-at-Law,

BA (Sp) Hons(Sociology) J’pura

MA(Political)-Kelaniya

MA (ug)- Colombo