By Godfrey Kenneth Beni:
You have recently landed exactly the right job. You receive the offer letter and sign it with a mix of relief and enthusiasm. You see the paragraph that states that “You will serve a six-month probationary period”. You do not think much of it; it is just a routine procedure. You work hard, impress your bosses and begin to consider your future with this company.
Then, without notice, you are summoned to the manager’s office. The words struck you like a physical punch. We have chosen to terminate your job. “You are still on probation; so we do not need to give you a reason.’ You are astounded, embarrassed and perplexed. You have not done anything wrong but you are taught you do not have any rights. You pack your desk and go, convinced you are helpless.
The reality, however, is rather different. The law is on your side—as the recent Malawi Enterprise Development Fund (MEDF) case demonstrated.
This scenario occurs considerably more frequently in workplaces across Malawi than most people realise. Employers have long held the misguided idea that probationary employees reside in a legal vacuum—that they can be fired at will, without justification, procedure or consequence.
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This is a harmful fallacy that has resulted in significant losses for at least one employer.
The Industrial Relations Court (IRC) issued a ruling that should be essential reading for all employers and employees in Malawi: “The fact that an employee is under probation does not make them a lesser employee to be denied protection of employment law, as a probationary employee remains an employee, and in cases of termination of contract or dismissal, the requirements of Section 57 of the Employment Act have to be adhered to.”
This ruling does not establish new legislation; rather, it serves as a reminder of what the law has always stated. A probationary period for a skilled worker may be incorporated in a contract of employment under Section 26 of Malawi’s Employment Act, although it must not last more than 12 months.
During this time, either party may end the contract without giving notice. On the surface, this looks to grant employers unrestricted authority to remove probationary employees at will.
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However, this is where the misunderstanding starts. The law does not allow for the dismissal of probationary employees without grounds or due process. It merely states that they are not entitled to notice. The distinction is critical—and one that many employers have consciously or unintentionally obscured.
The legal duty for a fair dismissal applies to all employees, regardless of probation status. Section 57 of the Employment Act states unequivocally that an employer may not terminate employment unless there is a valid reason related to the employee’s capacity or conduct or based on the operational requirements of the business.
Furthermore, the employer must allow the employee to defend themselves against any claims made. If an employer does not disclose a cause for firing, the dismissal is deemed unfair. The employer bears the duty of establishing the reasons for dismissal. These laws apply to all employees, even those on probation.
This principle was established far before the Medf case. The IRC clarified in the 2002 case of Sheha v Malawi Revenue Authority that, while probationary employees are not entitled to notice before termination of their services, they are entitled to know the reasons for their termination and be given the opportunity to defend themselves.
The court reasoned that the Employment Act does not define an employee differently for those on probation—an employee is defined as someone who offers their services under an employment contract, and that term applies equally to probationary employees.
This principle was supported further by the Katawa v Warpack (Pvt) Ltd judgement. The court determined that terminating a probationary employee was unfair since the employer failed to disclose grounds for the dismissal and an opportunity to defend himself. The court stated that the goal of placing persons on probation is to assess their behaviour and capacity in their new jobs.
If they do not meet the standards, it is permissible to advise them that they are unsuitable or incapable of performing the work.
However, the employer must still follow the correct procedures. The court emphasised that the employer has to inform the employee of the reasons for termination and provide them an opportunity to respond. This does not necessitate a full-fledged disciplinary process, but true interaction is required before a final decision is made.
The MEDF case exemplifies the disastrous effects of failing to meet these requirements. The affected employees were fired without consultation and without the opportunity to defend themselves. The court found clear and unmistakable violations of employment law. The former employees are now claiming K20 billion in damages, a huge sum that will eventually be borne by the organisation and, if it is a public body, regular Malawians.
The lesson for organisations is clear: Probation is not an excuse to fire employees arbitrarily. Probation is intended to assess suitability rather than to provide a shortcut for wrongful dismissal. Employers must provide probationary employees with the same level of due process as confirmed employees.
A fair approach includes telling the employee of the grounds for the proposed termination, allowing them to react and making a decision based on evidence rather than assumption. Employers who disregard this concept face not only legal consequences but also reputational harm and financial liabilities.
Employees on probation receive an equally clear message: You are not powerless. You have the right to know why your employment is being terminated, as well as to defend yourself. If your company fires you without following proper procedures, you may have a claim for wrongful dismissal. The courts have consistently maintained that probationary employees retain full legal protection. That protection cannot be removed by an employer. The MEDF ruling serves as a reminder that the law exists to protect all workers, regardless of position.
The probationary period is frequently referred to as a “trial” for the employee—a time for the company to determine whether they are qualified for the position.
However, it is also a struggle for the employer. It assesses if the organisation respects the law, values its people and is willing to follow fair procedures. Employers who fail this criterion will find themselves in court with significant claims. Employees who understand their rights will be able to defend themselves. And the courts will maintain the principle that no employee is “lesser” because they are on probation.
*The author is a Human Resource Practitioner
Feedback: kennethbeni35@ gmail.com
