Most, if not all, contracts of employment contain a clause or condition that specifies a probation period. Generally, there is a misunderstanding of the purpose and legal meaning of “probation” which causes employers and employees serious problems.
Probation is incorrectly believed to be a licence to dismiss an employee who is on probation:
- if the employer wants to make space for another prospective employee (e.g. a friend, nephew or aunt of the employer).
- for misconduct.
- because the employee “does not fit in”.
- because a manager “does not like the employee’s face”.
The labour law meaning of “probation” is “testing the employee’s work performance”. That is, the only legitimate purpose of a probationary period is for the employer to assess the suitability of the employee in terms of his/her work performance.
A probationary employee is one who has a conditional employment contract (written or unwritten). That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is or is not able to carry out the work properly. While this describes the purpose of the probationary period it does not mean that the employer has a free licence to dismiss the probationer if the employer believes his/her performance to be unsatisfactory.
On the contrary, the employer that places an employee on probation has a number of legal obligations including:
- Making it clear that the employee is on probation.
- Clarifying the length of the probation period.
- Setting reasonable performance standards.
- Specifying for and explaining to the employee the performance standards required.
- Evaluating and monitoring the employee’s performance against the set performance standards.
- Informing the employee of performance shortcomings.
- Issuing warnings to the employee where he/she is failing to meet the required standards.
- Assisting, guiding, counselling, training the employee where necessary.
- Before dismissing the probationer, giving him/her an opportunity to state his/her case.
The employer is allowed to extend the employee’s probation period in order to further assess the employee’s performance. This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.
However, before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension.
The Labour Relations act (LRA) does not mention the employer’s right to use probation for any purpose other than that described in this article. In fact, item 8(1)(c) of Schedule 8 of the LRA prohibits the use of probation for any other purpose.
For example in the case of Msomi vs Protea Security Services (2004 3 BALR 360) the employee was promoted from Security Guard to Reliever Inspector. He was later demoted for having been involved in two vehicle accidents in the space of 10 days. The employer justified the demotion on the grounds of the employee’s negligence and the fact that the employee’s promotion had been probationary. The employee challenged this as an unfair labour practice and the CCMA found that:
- The law does not allow for probation of a person already in the employer’s employ. It allows only for probation of new employees.
- If the employer wished to demote the employee he should first have been counselled or given the opportunity to state his case.
- The demotion therefore was unfair.
- The employer has to pay the employee seven months’ remuneration in compensation for the unfair demotion.
Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in:
- Designing a probationary policy and procedure.
- Setting realistic performance standards.
- Designing measures for monitoring and evaluating work performance.
- Training management in the implementation of the probation policy and procedure