Employers are within their rights to place newly appointed employees on probation in order for new recruits to prove themselves.

Probationary periods: what is fair and what is not?

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Employers are within their rights to place newly appointed employees on probation in order for new recruits to prove themselves. Probationary employment is also specifically provided for in Schedule 8 of the Labour Relations Act, Code of Good Practice: Dismissal (the Code).

The Code describes the purpose of the probationary period as …” to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.”

The Code however also states that: ”Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment.

Whilst the Code does not prescribe the duration of the probationary period, employers should be mindful that the Code does stipulate that the period of probation should be determined “in advance” and should be of “reasonable” duration.

The duration should be determined according to the nature of the job and the time it would take to determine whether the employee is suitable and can fulfil the inherent requirements of the job. A probationary period which is unreasonably long, depending on the specific occupation, may therefore be regarded as an unfair labour practice.

The employer should also ensure that probationary employees are given “reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.”

Extending the probationary period

The Code allows for the period of probation to be extended under certain circumstances, but clearly states that this can only be done …” for a reason that relates to the purpose of the probation.”…  which is to “evaluate the employee’s performance before confirming the appointment.”

Should the employee not perform satisfactorily during the probationary period, the employer may elect to extend the probationary period.

Where the employer has just cause to extend the probationary period, the employer should;

  • give the employee prior notice (preferably in writing) of his intension to extend the probationary period, for how long and why providing full details of how the employee’s performance has failed to meet the required standard, and
  • the employee should be given an opportunity to make representation as to why the probationary period should not be extended and the employer should give consideration thereto.

If, after giving due consideration, the employer still believes the probationary period should be extended, the employer must;

  • advise the employee of his rights to refer the matter to the CCMA or Bargaining Council, whichever the case may be.

The period of extension should also be reasonable and proportionate with the “purpose the employer seeks to achieve.”

Can you dismiss an employee who is still on probation?    

The Code of Good Practice clearly states that in the event that the employee is deemed not competent the employer may either extend the probationary period or dismiss the employee after complying with the relevant provisions of the code.  The requirements for fairness in terms of extension and dismissal are similar, which means that dismissal of a probationary employee may only take place after the employer has;

  • notified the employee of how his performance has failed to meet the required standard,
  • given the employee (or his representative) an opportunity to make representation as to why he should not be dismissed, which the employer should give reasonable consideration.

If, after giving due consideration, the employer still believes the employee should be dismissed, the employer must;

As with any case of dismissal for poor performance, the employee should always be afforded a “reasonable period of time for improvement”, before dismissal is contemplated.  In addition, the employer should also consider other means, short of dismissal, to resolve the matter.

Where probationary employees are concerned, it is my view that an extension of the probationary period, accompanied by appropriate guidance, training and counselling whilst the employee is afforded a reasonable time to improve, should ideally precede a dismissal.

Having said that, however, the Code states that when determining whether a dismissal during or on expiry of  the probationary period is fair, the person making the decision “ought to accept  reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.”

Pro-Act HR and IR Consultants can assist you in drafting employment contracts which meet the specific needs of your business and advise you on the inclusion of appropriate probationary periods where applicable.