There is still a trend for employers to appoint new employees on the basis of a probationary period, and unfortunately in some instances these employers have little understanding of the legal meaning of probation by being under the incorrect assumption that, by appointing a new employee on probation it entitles them to simply dismiss the employee without having to comply with any formal legal obligations.
Purpose of Probationary Period
Probation is for newly appointed employees only. The purpose of a probationary period is to afford an employer the opportunity to evaluate the employee’s work performance over a reasonable, mutually agreed upon period of time whereby the employer can determine the employee’s suitability for the position that he/she was appointed based on the employees work performance. The employee is therefore appointed on the basis of a conditional employment contract, meaning that the continuation of the employment contract is conditional on whether the employee has demonstrated that he/she is able to carry out the responsibilities defined in the job description.
In other words, it is to establish whether or not the appointee’s performance is of an acceptable standard before permanently employing the employee.
Since the probation is imposed to specifically review the employee’s ability to perform the tasks as expected, and employer may therefore not use the probation as an excuse to dismiss an employee because he/she simply does not fit in or because the manager does not get along with the employee.
Duration of Probation Period
Probation periods should be reasonable. This will depend on the nature of the job, which in turn will determine how long it will take to establish whether the employee is performing satisfactorily or not.
As a general guideline, the more complex the nature of the job, the longer the probation period e.g. only a month may be needed to evaluate the performance of a cleaner, but four months may be appropriate for an accountant.
Probation periods may be extended, within reason, where the employer is not convinced that the employee is performing to the required standard.
It is advisable that the probationary period be stated in writing (e.g. as part of the employment contract or letter of appointment) and that the employer’s expectations during the probationary period be communicated clearly and are understood by the employee. Should the probation be extended, it should once again be done in writing.
Probation and Dismissal on grounds other than Performance
Should it become necessary to dismiss an employee during the probation period for a reason other than poor performance, the normal procedural and substantive requirements are valid and need to be applied. Examples of such dismissals would include misconduct, incapacity due to ill health / injury or retrenchment. Therefore, should an employee on probation be accused of theft, a disciplinary hearing should be held. Where retrenchment has become necessary, a consultation process should be followed prior to the retrenchment.
The reason why probation does not have an impact on poor performance dismissals is due to the fact that probation is aimed at resolving performance issues before a person is permanently employed.
Dismissal for Poor Performance during Probation
An employer should give an employee on probation, evaluation, instruction, training, guidance or counselling as required by him/her in order to render satisfactory work.
Schedule 8 of the Code of Good Practice: Dismissal, deals with probation. An employer has the right to require a newly hired employee to serve a period of probation before confirmation of the employee’s appointment, which period should be determined in advance and should be of a reasonable duration.
During the probation, performance of the employee should be assessed. If the employee fails to meet the required standards or is incompatible, the employee should be advised of these shortcomings.
The employer should give an employee evaluation, instruction, training, guidance or counselling as required for the employee to render satisfactory work. This means that the employer should evaluate an employee during the probationary period and should provide regular feedback.
An employer may dismiss an employee or extend the probationary period after the employee is invited to make representations. Only after considering those representations may the employee be dismissed, or the probation period be extended.
There must be procedural fairness in dealing with the dismissal.
There must also be substantive fairness – in that there must be fair reasons as to why the employee is dismissed or the period extended.
It is not necessary to hold a formal enquiry.
The rules of natural justice will apply (e.g. when making representations the employee may be assisted by a fellow employee). The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. If the employer wishes to demote the employee as an alternative to a dismissal, then the employee should first have been counselled or given the opportunity to state his case.
It should be noted though that the employer does not require to have as compelling reasons for the dismissal as would be the case with an employee who is not on probation (i.e. with employees who are permanently employed).
The Code of Good Practice for Poor Performance: Incapacity, does not apply to probationary employees.
A probationary employee cannot be dismissed for reasons that are automatically unfair e.g. participation in a lawful strike. A probationary clause cannot be relied upon for dismissing a probationary employee on operational requirements. Probations can be very useful to employers but must only be applied after the employer has become fully aware of the legal implications and obligations that go along with it. Employers should therefore ensure that they have documented a probationary policy, have set realistic performance standards and have clearly outlined the measures for monitoring and evaluating the employees work performance.
CCMA Probation Information Sheet – https://www.ccma.org.za/Advice/Information-Sheet
Labour Relations Act, Schedule 8: Code of Good Practice: Dismissal
Section 188, Labour Relations Act