Employees, Employers and the Protection of Employment Act

“Thomas Jefferson said, “Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.” Essentially, it means that if someone breaks the law, he or she is still liable even if they had no knowledge of the law being broken.  Ignorance of the Law Is Not an Excuse – New Jersey State Bar Foundation (njsbf.org)

It is appalling that employers are still operating in ignorance of the Protection of Employment Act of 2003 and of the number of employees who are depending on employers to know the law, trusting that if they do, they will treat them in accordance with it.

Quite often persons, who for one reason or the other are reluctant to contact the Labour Department, would reach out to me inquiring about their rights as employees. However, the Protection of Employment Act 2003 is in the public domain and is one that both employer and employee should know by heart. Today I will be sharing with you excerpts from the Protection of Employment Act of 2003 that address three of the most recent concerns that were shared with me.

Joyce was only employed at Company A for six weeks when she landed a more lucrative position with Company B. Joyce, who was on a six-month probation and was fully aware that during that period the employment relationship could have been terminated by either party giving one

day’s notice, resigned accordingly. On receiving Joyce’s resignation, the employer of Company A informed Joyce that she would lose the payment for the days she had already worked for the current month because she opted to leave in the middle of the week and not at the end of the week.

Joyce was dumbfounded and wanted to understand the rationale behind her employer’s decision.

After all, her employment contract did not stipulate that resignation during the probationary period should be done at the end of a work week.

What are your thoughts? Do you think that Company A was legally correct to withheld Joyce’s pay?

Here’s an excerpt from the Protection of Employment Act of 2003:

7. Probationary period of employment

“(3)  The services of an employee during any probationary period may be terminated without pay except for the period worked, or notice.”

In the same way an employer can terminate the employee’s employment only giving her payment for the period worked; the employee can also terminate her employment and should be paid for the period worked.

Thomas is an employee of Company C and has been employed for fourteen months. However, Thomas does not know the status of his employment. According to the employment contract, Thomas was expected to serve a six-month probationary period. However, fourteen months have elapsed, and his manager has not had a probationary assessment.

By law, should an employer prolong an employee’s probationary period beyond six months?

Here’s an excerpt from the Protection of Employment Act of 2003 

7. Probationary period of employment

“(1) Except as otherwise provided for by any other law where there is a probationary period attached to a contract of employment the period shall not exceed six months.

(2)  Notwithstanding subsection (1) a probationary period may be extended for a further period not exceeding the duration of the original period.”

Therefore, in the first instance, a probationary period should not be longer than six months. If after the first six months an assessment is done and it is determined that the employee needs additional time to become competent in performing the tasks, he/she was hired to do, the employer can extend the probationary period. However, this should not be for more than six months.

In conclusion, threats of termination of service have long been something that employers use to intimidate and coerce employees into working under unfavourable conditions. After all, it is an employer’s market. However, what many employers and employers are not aware is that the employees can also terminate their service and be eligible for severance.

Here’s an excerpt from the Protection of Employment Act of 2003:

Termination of services by employee

“(1)  An employee may terminate his employment by giving his employer a minimum period of two weeks’ notice in writing unless due to the nature of the work that is performed a longer notice period is customarily given if the conduct of his employer is of such a nature that the employee cannot reasonably be expected to continue in his employment and any such termination shall be deemed to be termination by the employer entitling the employee to severance pay if he is otherwise so entitled.

(2)  Where a complaint is made pursuant to Part IV, the employee must prove the reason which made the continuation of the employment relationship unreasonable.”

In other words, once the employee can prove/verify that the employer has created an environment that has made it intolerable for him to continue in his employment, he can give the employer notice of his separation and make a claim for severance payment, once he has been in continuous employment for two years or more.

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