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The High Court of Uganda in the recent decision of Barbra Awidi Michelle v URA [HCMC No.0322 of2021] has affirmed the difference between a Probationary Contract within the meaning of section 2 of the Employment Act of 2006, and a Contract containing a clause for a probationary period. Under the Law, a probationary contract is a separate agreement, strictly for probation for a period of six months, renewable up to not more than another six months. Including a term as to probation in a full-term or fixed contract does not make a contract a probationary one. The probationary period only becomes part of the contract.
In this case, the Applicant challenged the decision of URA (the Respondent) for summary dismissal without a fair hearing that was not subject to prior investigation and process. In response, the Respondent stated that the Applicant was dismissed during the probationary period and relied on Sections 66 and 67 of the Employment Act, 2006, and clauses in the Employment contract between the parties for the argument that the requirement of notification and a hearing prior to dismissal is not a pre-requisite during the probationary period of employment and as such, the Applicant was properly dismissed within the precincts of the law.
The court held that for a contract to be purely probationary, so as to deny the probationary employee some essential rights enjoyed by the employees of the organization, it should state that it is probationary and that upon successful completion of probation, the person will be formally appointed or given an employment contract. Simply providing a term as to probation does not make a contract a probationary one but rather an ambiguous contract. Under the law, a contract’s ambiguity must be interpreted against the person who was better placed to avoid or eliminate the ambiguity.
By Isabella Pedun