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The dispute was time barred as it was not filed within the statutory period after termination; respondent was a probationer at the time of termination and not entitled to remedies for unfair termination; CMA lacked jurisdiction to arbitrate and issue the award.
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The respondent was not a probationer at the time of termination, having worked for over five years beyond the probation period without extension or assessment; the employer failed to prove substantive or procedural fairness in the termination; thus, the termination was unfair and the CMA award is sustained.
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The applicant was not confirmed in employment and remained a probationary employee; as such, under Section 35 of the ELRA, he was not entitled to remedies for unfair termination and had no cause of action against the respondent.
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The applicant was still a probationary employee at the time of termination, as there is no automatic confirmation after probation expiry. The termination for assault was justified and followed proper procedure under the law. The mediator was correct to dismiss the applicant's claim.
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The High Court held that the respondent remained a probationary employee, so the CMA lacked jurisdiction under section 35 of the Employment and Labour Relations Act.
An employee who has not been confirmed in writing and is still under assessment remains a probationer, even if the probation period has lapsed, and is not entitled to remedies for unfair termination under Part III, Sub-Part E of the Employment and Labour Relations Act, 2004. The issue of probation status was properly considered as it was raised in the pleadings and submissions.
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An employee who resigns before confirmation, even after the expiry of the probation period, remains a probationer if the contractual conditions for confirmation are unmet. Probationers are not entitled to remedies for unfair termination under Part III, Sub-Part E of the ELRA. The issue of probation status was properly before the court and the right to be heard was not violated.
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An employee on probation remains in that status until explicitly confirmed by the employer; there is no automatic confirmation upon expiry of probation. Section 37 ELRA does not protect probationary employees from unfair termination, but fair labour practices must be observed during probationary termination.
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The High Court held that probation does not automatically convert to confirmed employment, but the employer breached fair procedure by failing to allow response or improvement.
The appellant was seconded from MOF to TRA and remained an employee of MOF; the letter from TRA was a non-confirmation after probation, not a termination. Therefore, there was no right to reinstatement or damages for wrongful termination, and the right to be heard and to be given reasons did not apply. The High Court erred in awarding damages.
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