Author: Tshepang Kekonnwe
Employment probation is often described as a trial period, a window in which employer and employee assess suitability. But even in trials, there are rules. A verdict delivered without explanation may be efficient, but it rarely feels just. Recent developments require employees to provide documented reasons when terminating probationary employees signal a shift where probation is no longer a space of unchecked managerial discretion, but one increasingly shaped by procedural fairness.
For decades, Section 20(2) of the Employment Act explicitly shielded employers from the principle of natural justice during probation. Termination with at least 14 days’ notice or payment in lieu was deemed to be for just cause. Neither party was required to provide reasons for the termination which technically declared “the right to be heard” (audi alteram partem) non-existent. Terminations during probationary periods without evidence of assessment, feedback, or support could not be challenged as unfair. This meant employees played with a stacked board, moving pieces at will, while probationary employees were essentially unprotected pawns without a square to retreat to.
The introduction of the Employment and Labour Relations Act has fundamentally altered this landscape. It provides a more balanced and rights-based approach to probationary employment. Under Section 155 (4-5) of the new framework, termination during probation now requires valid reasons. Employers are now legally obliged to set clear performance expectations at the start. They also must provide feedback to employees and give them a reasonable opportunity to improve. This provision strips away the comfortable home-field advantage employers once enjoyed. It’s the legal equivalent of conceding a late-away goal, suddenly forcing them to defend their decisions under the high-pressure scrutiny of a hostile stadium. Failure to comply significantly increases the risk of unfair dismissal claims.
A more regulated probation period can enhance long-term economic efficiency through better firm-worker matching. The prerequisite of clear performance expectations and feedback forces employers to invest in better screening and performance management. This reduces quite quitting and improves the quality of the match. Protection against arbitrary dismissal encourages workers to invest in firm-specific human capital, as they feel more secure that their efforts will lead to permanent employment. Advocates argue that fair treatment increases work motivation and reduces shirking, as employees perceive the contract as a fair exchange rather than a precarious one.
However, economists often view strict termination rules as firing costs that can lead to market alterations. When it becomes harder or more litigious to fire an employee during probation, firms may become overly cautions about hiring. This sclerosis can keep unemployment higher, especially for youth who must also confront concerns over poor work ethics. It can also cause resource misallocation as firms cannot shed unproductive workers quickly to reorganize their labour towards more profitability. Employers may also offset the increased legal risk and firing tax by offering lower starting wages to probationary employees to cover the potential cost of a future legal challenge.
The implementation of the employment and Labour Relations Act marks a significant structural shift that may be potentially aligned with the 2026/27 National Budget’s financial constraints. A 25% increase in corporate tax and the administrative burden of electronic VAT invoicing raise the cost of doing business while the new labor laws require firms to switch from a fire-at-will probationary model to a resource-intensive system of structured feedback and documented support mechanisms. This has a pincer effect on Botswana’s private sector, although firms are legally required to devote more time and resources to developing underperforming probationers, a more aggressive tax system and a P26.35 billion national deficit are squeezing their capital.
Probation was never meant to be immunity from accountability and transparency. It is a period of assessment, not exemption. By requiring documented reasons for termination, the law reminds employees that flexibility must coexist with fairness. The challenge now lies not in resisting the change, but in applying it wisely, ensuring that efficiency is preserved while arbitrary power is restrained. A trial may be brief, but even brief trials deserve reasoned outcomes.
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