Tuesday, 18 June 2013

Rights of Employees on Probation

Q: Email from Alana N. with 4 separate questions; these are the first two:


A:

  1. During the probationary period (in this case 3 months) does the employer have the right to extend the employee’s working hours (e.g. was 7.30am to 4:00pm and changed to 7:00am to 4:00pm) without the employee’s consent? The signed contract doesn’t specifically state the working hours however the HR department verbally indicated that the hours are 7.30 am to 4:00pm OR 8:00am to 4:30pm and for the past 2 months the employee has been following this time-frame. No discussions were held with the employee before a letter was sent informing the employee that the hours of work will now be extended. Note that other workers in that department didn't have the hours of work extended so it is not a departmental change/organisational change.
No, the employer CANNOT extend an employee’s work hours without notice, reason and increase in salary; and either way, it is a variation of the contract, so it will need to be accepted by both parties. The fact that it has only happened to one person is an even stronger reason why it will have no legal ground if it is forced on the employee and the matter goes to court. I would recommend that the employee raises a formal grievance concerning the matter.

  1. Can the employer hold this against the employee if there is objection to the change when the probationary period is over and hence terminate the contract? At the end of the probationary period, can the employer choose not to continue the Contract without any reason or justifiable claim? Even if the employee’s supervisor provides a favourable performance appraisal?
An employer can terminate an employee’s contract without going through the procedures of warnings DURING the probationary period, but the proper procedure for dismissal (1 week notice) is still required. However, if at the END of the probationary period, the employee is fired for a non-performance related reason (and everyone is aware that the employee stood up for his/her rights), it will definitely be seen as victimisation, which is illegal according to the Equal Opportunity Act 2000. 

Also, in the case of Bank and General Workers’ Union v. Colonial Life Insurance (Company) Limited TD 265 of 1986, the Court opined:
“It is a well-established principle of industrial relations that the services of a worker on probation cannot be dispensed with for tenuous or improper reasons. An employer is not entitled at his will to terminate the appointment of a worker merely because he is on probation.”


61 comments:

  1. Can an employer extend my probation period a month after I have completed my probation even if I passed my appraisal?

    ReplyDelete
    Replies
    1. Absolutely not!

      Based on the information you've provided, your employer cannot do that for 2 reasons:

      1. Probation can only be extended if the employee has not been performing his/her duties efficiently; however, according to your info the employee has passed the appraisal.

      2. A probationary period can ONLY be extended within a week after the end of the probation (enough time to conduct appraisal, etc.). Once that period has passed, especially when it's as long as a month, the employee is now full employed with the company and cannot them be given a new probationary period.

      Please send me a private e-mail and we will rectify this injustice with your employer. Check "about me" for e-mail.

      Delete
    2. If the employee is on extended probation without being notified, is the employee obligated to send in a letter of resignation ? I have a serious matter that needs to be dealt with.

      Delete
  2. Am I supposed to get get compensation if I was fired on the spot without any kind of notice

    ReplyDelete
    Replies
    1. Depends on the reason for you getting fired.

      Delete
  3. I must complement you on this blog for hearing the voiceless. I have truly seen value in it and will also be asking a few questions. I havent seen any wrong advice here and sincerly thank you for helping those who have asked. Many thanks and the Lords blessings

    ReplyDelete
  4. If your employer fires you for not performing and hires his ex girlfriend . But she doesn't show up for work so you continue working without confirmation of your job position and then your employer tells you he is going to reduce your salary from $6000 to $4000 reason being because he can get the job done cheaper by someone else. Is this discrimination.

    ReplyDelete
    Replies
    1. Very illegal. Send me a private e-mail.

      Delete
  5. Great advice. I am noticing that an employee on probation is being disrespectful to the department manager, even though he's delivering in terms of the work. Can he be terminated during this period?

    ReplyDelete
    Replies
    1. Rudeness is a legitimate reason for terminating her, but you first need to talk to her about it, being descriptive about exactly what she’s doing and how it’s problematic. Refer to it as a verbal warning...

      Delete
  6. Employer has a six month probationary period. Notice of a six month extension comes more than three months after the end of the initial probationary period. Some 13 months later the employer issues a letter of non-confirmation of appointment. The employer states that they had extended the first probationary period however i was not informed of this.

    Is this legal? Can you extend someone's probation without updating the person or the HR documents. Can you do so months after the end of the probation period? Can you have someone on probation for 13+ months? If no what is my recourse?


    ReplyDelete
    Replies
    1. Were there any performance evaluations to justify the extension?.

      This entire thing smells like a wrongful dismissal. Send me an e-mail.

      Delete
    2. Yes. There was an evaluation. I sent them via email a few days ago.

      Delete
  7. Hi i have a 2 year contract i am going on 3 months and due to protest at my workplace due to alot of reason but unsafe working conditions we have agree to sign osha 15 because the buildingis onsafe bearing in mind some workers have not sign osha 15 and is working in the unsafe building.... so can i be victimized for refusing to work under osha 15.... would contract be terminated

    ReplyDelete
    Replies
    1. You need representation. Send me an e-mail

      Delete
  8. After a negotiation matter concludes in the Industrial Court is there a time limit for judgement to be handed down?

    ReplyDelete
    Replies
    1. A "negotiation matter"? What's that?

      Delete
  9. Good day, if I am fired because after two to three months of working I ask for my contract. Is that legal .. Then if my base salary was $4000 then d employer decides a week before pay my new base is $3000 is that okay. And because I questioned this I was fired on spot in front of everyone she called them into the office embarrassed me told me I was a BUM looking for a pay day. And to leave her work place. I said if so can I have my pay she told me pass back later. When I did it wasn't d correct amount . Then I was told take it for what it is cause she has friends in labour board and I am a poor bum.

    ReplyDelete
    Replies
    1. Of course that is illegal... send me an e-mail.

      Delete
  10. For an employee on probation what are their sick leave entitlements?

    If they go over their entitlement, what disciplinary actions can the employer take?

    ReplyDelete
  11. I am employed with a company and they had put me on a 6 month probation. However the probation has ended. The manager I had reported too, she left and resigned. Now they put my ex manager, her manager to be my manager. Now this manager was put to do my performance appraisal and review for the 6 month probation review, he rated me very poorly. I was given some of my ex managers job duties because they do not have a new Sales Manager as yet. Anyway, the manager who had to do my review, he went and phoned up my ex manager asking her how to score me and then they both came up with negative comments. In the beginning I used to reach to work a few minutes late, as I am from Central area and my job is in San Juan. For the whole 2 months Jul and Aug my attendance has been really good. I have never been given a written warning, but one verbal.
    wasn't it ethically wrong for the manager to go ask a Former Employee about my performance? Where was he when he was supposed to be present to supervise my work? Do I have a case? They said they will give me a letter stating the 3 month extention of probation. I have been performing my duties ad the sales manager duties whilst on probation.

    ReplyDelete
    Replies
    1. I wouldn't suggest fighting this. Just go through the extra 3 months and get to work on time. Location is not an excuse.

      I lived in Chaguanas and went to school at St. Anthony's... never late once.

      Delete
  12. Hi, Good Evening if you have been employed at an institution and was confirm in 2011 as a CSR and during that period you were called upon to act as a Loans Officer without any written letter and this has been going on for more than two years and they are now telling you about a probationary period to confirm the position when this was never communicated to me is this legal?

    ReplyDelete
    Replies
    1. There's no law on this, but it doesn't really make sense after 2 years...

      Delete
  13. Good Day,

    I am an employee for a private sector, the directors of this company are verbally abusive and are finding ways to try to fire me (saying I did not send them information when I clearly did...requesting information within an unreasonable time frame...they have spoken to clients via emails using my account without my knowledge) all of this can be proven via email). The person who is training me has not been with the company longer than 4 months and he himself is still training. They have stated in my contract that I cannot take them to the industrial court and bring any legal action against them. Is this legal? This contract was given to me almost a week after I began the permanent position and it also states that I must give one month notice (while on probation) in order to leave the job. Can I leave immediately given the treatment and hostile environment, and can they take me to court for not giving the month notice (they have threatened another co-worker with legal action (she is permanent but the abuse is ridiculous) if she does not give the month notice).

    ReplyDelete
    Replies
    1. Q; can they take me to court for not giving the month notice?

      A: No

      Delete

  14. ​Hi,

    i was asked by the mother of my boss to work for one of their companies in the creative industry. They have a store and a production company. My interest was to work in the production company but as they did not have anyone for the store, the mother asked me to work in the store until they found someone else and as a new mother, i would be suited for the production company with more flexible hours. They set up an interview, I went in, I was able to work out a day to go to clinic with my new born, and I also let them know I would be going back to school and they told me when that time came, give them my timetable. They then said they don't really compensate people for their qualifications but for work done, which i later found out was because they were both uneducated, so they did not have much value for education as it stood.

    I started work the last week in August at the branch, they let me managed the branch and in the process, I was head hunting for employees to work their, as they told me, they would like to train me for an administrative position at the head office. I worked late hours, went beyond the call of duty and really did far beyond the scope of the contract I had signed. They had me on a probationary contract of 3 to 6 months. The boss came in the branch from time to time and told me he liked what I was seeing and that he was very pleased with my work. He even promised me a company phone and told me if I needed to take out a loan, he would stand security for me.

    The problem came, when I said that I got my timetable for school and I would be showing it to them as promised. He became very taken aback and told me to talk it over with his wife. Mind you, all the times before this, he would say, do not go to her about anything, go to the office manager who is directly below him in the command chain. I mean, things were very confusing with this company, sometimes the mother would give an opinion, the daughter in law would come in and have a different opinion, the husband would be something different and the employees caught in the middle.

    Anyway, I told the wife that the time table was out and she bluntly said, that would not work for them and that I had to make a choice. I asked her if she did not remember her discussion in the interview room about me going back to school one day for the week, which is the reason she had me looking for a second person, so that there would always be someone at the branch. She said she did not remember that, and then instantaneously switched up on me, fired me on the spot and told me I wasted her time and that would not work her because it will become a problem. She them called her husband on the phone and told him it would be my last day. She also said, that I got a day off to see about my son and that companies don't give new employees days off like that to take their new borns to clinic. She said companies especially them syrians don't care about nobody children. And went off on a rant, which was a completely different disposition to what my work acumen elicited from her for the time that I had been there. The way she acted, I felt embarrassed. She said, she will ask the other employee to come in earlier as I will be leaving, and that if she couldn't come in earlier she gone too. When the other employer came in, she called her in the back room and related her the story as if I was not even there, talking about me. I feel hurt and upset, please help.

    Can I sue for wrongful termination?
    Can I sue for discrimination as well?
    I'm I entitled to payment in leiu of notice?

    I was only there a month and one week.

    ReplyDelete
    Replies
    1. Yes: contact us at ttworkersassociation at gmail.com
      No
      Yes

      Delete
  15. hi I have worked a month and a week from my three months probation and at the end of the week for the second month I was given a letter of termination for not meeting the requirements of the employer. I was a monthly paid employee and was paid for the week I work for the second month would like to kn if the employer was to pay me for the month that I have already started or only the week.

    ReplyDelete
    Replies
    1. You should be making a claim of wrongful dismissal. Contact our union: ttworkersassociation at gmail.com

      Delete
  16. Can I get fired during my probationary period because I am too quiet, My probationary period is 6 months and It ended in the third month. This is a banking platform. They stated that i am too quiet and that I don't interact with fellow colleagues which is not true, because after working hours, we all talk and laugh with each other and it is quite clear seeing that my supervisor is also there. The termination letter was very vague and states that they are not pleased with my performance. Although everyone else was shocked at that statement. Please note that the letter stated nothing about being too quiet which is what they told me. Also, a an oral warning was given to me the day before my termination, however they did not say that I would be terminated. I believe this is a case of Racism and victimization. Did I mention that favouritism was granted to a more recent trainee than myself, in that they knew his/ her parents very well and comments such as: you laugh just like your brother and look just like your mother were made to this trainee. They did not even give me my six months to prove myself, This was my first official job, and my resume is already tarnished.

    ReplyDelete
  17. Can I get fired during my probationary period because I am too quiet, My probationary period is 6 months and It ended in the third month. This is a banking platform. They stated that i am too quiet and that I don't interact with fellow colleagues which is not true, because after working hours, we all talk and laugh with each other and it is quite clear seeing that my supervisor is also there. The termination letter was very vague and states that they are not pleased with my performance. Although everyone else was shocked at that statement. Please note that the letter stated nothing about being too quiet which is what they told me. Also, a an oral warning was given to me the day before my termination, however they did not say that I would be terminated. I believe this is a case of Racism and victimization. Did I mention that favouritism was granted to a more recent trainee than myself, in that they knew his/ her parents very well and comments such as: you laugh just like your brother and look just like your mother were made to this trainee. They did not even give me my six months to prove myself, This was my first official job, and my resume is already tarnished.

    ReplyDelete
  18. Hi
    Good night
    My situation is very crazy. It is one where I have worked at the same organization for the past 25 years. During that time my boss has gotten very close and familiar with my family. However he is over stepping his boundaries and intruding in my personal life. Suggesting who my friends should be, where I can hang out etc. He has given the neighbours cell phones to monitor our movements at our home. He is even reached the point to accuse me of child abuse if ever I correct my children. I have been threatened on numerous occasions about being fired and also being put in jail etc. This is sometimes done at he workplace in the staff room or over the phone in front of other staff members. Your probably asked why I'm staying ? I need my job for financial reasons. I have been like an outcast for the past year at my office. Some of my responsibilities were cut(my pay was not affected). Do I have any legal grounds to stand on if I were to resign from my job. It is very upsetting and embarrassing when I'm abused in front of my coworkers. I need help please.
    Best regards.

    ReplyDelete
    Replies
    1. http://trinidadandtobagolegalrights.blogspot.com/2012/03/employment-rights-constructive.html

      Delete
  19. I was sick for four days but the first day i called and told them im ill and cant make it, i never call the rest and i just showed up on work and i received a letter stating that i need to prove my absence with sick leave but because i am on probation i dont get pay for when i stay at home. Where does this leave me when i do carry im my sick leave, would they have to pay me or not

    ReplyDelete
    Replies
    1. Usually, sick leave entitlement does not "kick in" until after 6 months.

      Delete
  20. I have a query, my bf has been on probation for six months, working hard even with a tough supervisor. he had to take some time off work to open an account since apparently they only deal with one banking institution. He also lost his debit card and had to see about that as well. He has a heel spur so has been off work possibly just a few days out of the whole probationary period. I have told him to document when the supervisor gives him instructions, he is an autocad technician. He is very meticulous so he takes instructions to the letter. When it is time to hand in his work the supervisor always has some complaint. That he has not followed instructions. This supervisor as I understand it has had a history with this same problem and is known for his attitude when he gives assignments and doesn't know how to articulate it. However at the end of the six months my bf was told come back in January because he didnt have time to evaluate. He went back and waited about a week before asking for his evaluation. The Supervisor gave him a poor rating and extended his probation to a further six months. I find this to be odd because I know my bf work ethic and the nights he didnt sleep finishing projects. To me this employer seems to want labour without adequately paying employees for their skill set. It's easy to pay a base salary and keep someone working without actually having to hire them. I was told just today that another employee has been working six months after the probationary period without a word and complained to the boss and this supervisor says he has some concerns. Now this poor gentleman has to be put on probation again?! And as I understand it he is a very hard worker. This cannot be legal, sigh please let me know if it is. This supervisor to me has a God complex and the employees seem to just be his minions smh

    ReplyDelete
    Replies
    1. The employer is within his right to extend the probationary period if he believes that the employee is not yet fully competent.

      However, the problem here is that the employee wasn't given an opportunity to improve before the end of the probationary period.

      But, the good news is that it cannot be extended any further.

      Delete
  21. if on probation and get sick and brought in sick leave is that a no pay sick leave?

    ReplyDelete
    Replies
    1. I don't know how long you've been working there for or if you fall under the Minimum W Act.

      Delete
  22. Can an employee still be temporary after working almost 2 years when the probation period is 3 months?

    If fired on the spot for no specific reason, how many months compensation should the employee receive?

    The employee's salary was deducted because they attended a class on saturday (was not paid for the missing day). Now that the employee has completed classes she is unable to take up original reponsibility on saturday's and is still not being paid for it. She was told that it was recession but they have hired more staff the same week and asked the employee to train the new staff.

    Can the employer do this?

    ReplyDelete
  23. 1. Absolutely not.

    2. There's no formula. Your union will decide that for settlement, or the judges if it ends up at the IC.

    3. No. Join a union. Of course I would be biased and say join ours (Trinidad and Tobago Workers' Association), but that's your decision to make.

    ReplyDelete
  24. Is it legal for an employer to withhold your first week salary. Are you entitled to this upon leaving this job.

    ReplyDelete
  25. Is it legal for an employer to withhold your first week salary and also are you entitled to this upon leaving said employer

    ReplyDelete
    Replies
    1. An employer cannot withhold salaries.

      Delete
  26. can an employer give all employees n allowance cause they dont want to pay backpay during a contract

    ReplyDelete
  27. Good morning how long is the legal probation period is it 3 months or 6 months?

    ReplyDelete
    Replies
    1. Usually starts at three, and can be extended up to 12.

      Delete
  28. Good day
    If i signed a probabtionary contract and want to leave after a week do i have to give notice.

    ReplyDelete
    Replies
    1. Good practice is always to give notice.

      Delete
  29. if you have been working as a temporary employee at intermittent periods, e.g. 11 weeks at a time or less with 1 to two weeks break, are you entitled to paid sick leave, vacation or pemanancy?

    ReplyDelete
  30. If I am on probation and find out that I am pregnant... Can I be dismissed or can that affect my position becoming permanent? Please help.

    ReplyDelete
  31. Hi. I was recently given a one month Notice of Termination of Employment due to my employer receiving a one month Notice of Termination from our client. I have not taken vacation during the last year. Am I entitled to be paid for my unused vacation days?

    ReplyDelete
  32. good morning. I was recently employed at a company for two weeks. At the interview they told me they pay fortnightly, now for my first two weeks they told me that i canot receve payment till month end. is this in breach of the agreement made? And due to this I tendered my resignation and asked to receive my full payment immediately in which they refused. Is this illegal?

    ReplyDelete
  33. I've been on 3 month probation without an appraisal. During month 4 I've been given a letter stating my probation is extended. Can my employer rightfully extend my probation period?

    ReplyDelete

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