Probation is one of the most common features of employment contracts. An employee joins a company. The contract provides for three months’ probation. Three months pass. The employee continues reporting for work. Another month passes. Then another. No confirmation letter is issued.
A natural question arises:
Has the employee automatically become a confirmed employee simply because the probation period has expired?
The Supreme Court of Zambia considered this question in Sakala v Mpongwe Milling Ltd [2016] ZMSC 253. The decision provides an important lesson about the relationship between time, contractual terms and employment status. But because the events in Sakala occurred before Zambia’s current Employment Code Act, 2019, the case must today be read together with the current statutory framework.
The Employment Contract
Mr Sakala was employed as an Assistant Accountant under a two-year contract. His contract provided for probation and contained a particularly important requirement: Upon successful completion of probation, his substantive appointment would be confirmed in writing.
Mr Sakala continued working beyond the probationary period. But he never received the written confirmation contemplated by the contract. When his employment was subsequently terminated, he argued that because he had continued working after the probation period expired, he should be regarded as having been confirmed. The Supreme Court disagreed.
The Words “Confirmed in Writing” Mattered
The Court focused on what the parties had actually agreed.
The contract did not merely say:
“After six months, the employee automatically becomes confirmed.”
It contemplated a further step:
confirmation in writing.
Because that written confirmation had not occurred, the Supreme Court held, on the terms of that particular contract and the law then applicable, that merely continuing to work beyond the probation period did not automatically amount to substantive confirmation.
That illustrates a wider contractual principle:
- Small phrases in employment contracts can have large legal consequences.
- Employment Status Should Never Be Left to Guesswork
From a management perspective, however, Sakala also illustrates something that employers should generally avoid:
uncertainty.
An employee should not work for months wondering:
“Am I confirmed or am I still on probation?”
The employer should not discover the same uncertainty only when a dispute arises.
A properly managed probation process should have:
- a beginning;
- an assessment process; and
- a clear conclusion.
The Employer Should Manage the Calendar
HR departments should know the probation-end date for every probationary employee. That date should be diarised when the employee joins.
Well before it arrives, management should consider:
- Has the employee met the required performance standards?
- Have any concerns been communicated?
- Is further assessment required?
- What does the contract provide?
- What does current law require?
- What written communication must be issued?
Probation should not simply expire because everybody forgot about it.
The original DAC article makes this point directly:
“Don’t allow probation periods to drift indefinitely.”
The Employee Also Has a Role
Employees should understand the terms of their employment. If your probation period has expired and nothing has been communicated, ask:
“What is my employment status?”
Keep copies of:
- your employment contract;
- probation assessments;
- correspondence;
- extension letters;
- confirmation letters.
Do not rely entirely upon informal statements such as:
“Don’t worry, you are basically permanent now.”
Important employment decisions are better documented.
Written Communication Protects Both Sides
Employers sometimes view HR documentation as unnecessary bureaucracy. It is not a clear letter stating:
“Your appointment is confirmed with effect from…”
Similarly, where the law and contract permit another course, that decision should be dealt with properly and communicated within the applicable legal framework.
Documentation protects:
- the employee, because employment status is clear; and
- the employer, because there is evidence of what decision was made and when.
The Important Modern Qualification
This is particularly important with Sakala. The events giving rise to the dispute occurred in 2010, and the Supreme Court decided the appeal in 2016. Zambia subsequently enacted the Employment Code Act, 2019. Your source article therefore correctly cautions that Sakala should not be read as saying that an employer today may simply keep an employee on probation indefinitely by withholding a confirmation letter. That qualification is essential. Legal precedent does not exist in a vacuum.
A lawyer relying upon an older employment decision must ask:
Has the statutory framework changed since this judgment?
Contracts Matter — But Statutes Matter Too
This is a broader lesson for commercial and employment lawyers.
The analysis should not end with:
“What does the contract say?”
We must also ask:
“What does the law permit the contract to say?”
Employment contracts operate within a statutory framework. Mandatory statutory protections cannot simply be removed because an employer inserts different wording into a contract.
Modern probation advice therefore requires consideration of:
- the employment contract;
- current employment legislation;
- applicable regulations;
- collective agreements where relevant;
- current judicial authority.
Sakala remains valuable for understanding contractual reasoning. But contemporary advice must be based on contemporary law.
A Lesson for Business Efficiency
There is also a management lesson here. A company with 500 employees should not depend upon one HR officer remembering:
“I think Chanda’s probation ends sometime next week.”
Technology can solve this. A properly configured HR or calendar system should automatically identify:
- probation start date;
- review dates;
- probation expiry;
- responsible supervisor;
- outstanding assessment;
- required decision.
This is a good example of how legal compliance and business efficiency can reinforce each other. Better systems reduce legal risk.
The DAC View
At Dzekedzeke and Company, we believe Sakala v Mpongwe Milling Ltd contains two enduring lessons. The first is contractual:
Read the words carefully.
The phrase “confirmed in writing” became central to the dispute.
The second is managerial: Do not allow employment status to remain uncertain.
For employers: Diary probation periods. Assess performance. Make the decision. Communicate it properly.
For employees: Know what your contract says and obtain important employment decisions in writing.
For lawyers: Always check whether subsequent legislation has changed the legal landscape in which an older precedent was decided.
As the original DAC article concludes:
“Don’t assume your employment status. Know what your contract says, get important decisions in writing, and always check the current law.”
A few words in an employment contract can make an enormous difference. But good employment practice should ensure that nobody has to go to Court simply to discover whether they were confirmed.
For legal advice on employment contracts, probation, termination and workplace disputes, contact Dzekedzeke and Company.
Based on Sakala v Mpongwe Milling Ltd (Appeal No. 101 of 2014) [2016] ZMSC 253 (12 December 2016).
