The implementation of a probation period for new employees is a common practice within all South African companies, regardless of their size.
The aim of this period is of course to evaluate the employee’s performance and to ascertain whether or not the employee is a good ‘fit’ and whether they are capable of performing their tasks and duties to the expected and required standard, before making the decision to appoint them on a permanent basis.
The Code of Good Practice on Dismissals, Schedule 8, of the Labour Relations Act (LRA) sets out specific guidelines with regards to probation, the most important of which are the following:
- There is no prescribed time limit set for a probation period. The probation period must be reasonable, given the circumstances of the job.
- The period should be determined by the nature of the job and the time it would take to evaluate the employee’s performance.
- The probation period must be agreed upon up front in the contract of employment.
- The probationary status of an employee is only applicable to issues of work performance, i.e. the competency of the employee – it has no relevance to misconduct perpetrated by the employee during probation, nor can it be an easy way out for the employer on the basis of an arbitrary issue concerning the employee. All issues other than work performance (competence) must be dealt with in the same way as with any permanent employee. A probationary employee is still entitled to protection by labour law.
This last point is often where the misconception surrounding probation arises. Many employers believe that once the probation period is over or nearing its end, that they can simply inform the employee that their performance is less than satisfactory and terminate their employment.
It is often used as an easy way out for employers who are less than enamoured with an employee. This is not so, and any dismissal done in such a manner will be both procedurally and substantively unfair.
If an employer is dissatisfied with the performance of an employee, they need to follow the guidelines for dismissal due to poor work performance as set out in the LRA. During the employee’s probation period they should be provided with all the requisite training, counselling and evaluation.
The guidelines for dismissal for poor work performance are set out in the Code of Good Practice as follows:
“Any person determining whether a dismissal for poor work performance is unfair should consider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not-
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.”.
The performance of an employee who is on probation must be monitored continuously from commencement of employment with these guidelines in mind.
The fact that an employee is still in their probation period will certainly be a compelling argument for dismissal as opposed to a permanent employee who has already successfully completed their probation period. However, the above guidelines still need to be applied.
Deciding not to appoint a probationary employee – what now?
Where an employer comes to the decision not to permanently appoint the employee at the end of their probation, this effectively constitutes a dismissal and the employer must be able to prove that all of the requirements in the Schedule have been met in order to succeed against a challenge of unfair dismissal relating to probation. The decision to dismiss an employee for an unsuccessful probation period must be supported by records so that the employer is able to justify its decision. The employer is also obliged to consider other ways, short of dismissal, to remedy the matter.
In practice, this means that the employer must ensure that line managers and supervisors are aware of these legal requirements and that they should keep detailed written records and minutes of:
- Meetings with the employee (where the employee may have the assistance of a co-worker), or even informal mentoring sessions or on-the-job training and coaching.
- Solutions decided upon between the parties to address mistakes/performance.
- Reasonable deadlines given for improvement.
- The result of the measures taken for the employee to attain performance at the required standard.
It is very important to note that the employer should not be looking for perfection in the probationary employees work, but whether they have steadily improved and whether they have been able to reach the required standard, during this period.
The initial agreed upon probation period may be extended by the employer, should they wish to further assess and evaluate the performance of the employee. However, this can only be for reasons related to performance and not misconduct.
In order to achieve a procedurally fair dismissal for reasons related to the employee’s performance, the employee must be given the opportunity to make representations before any dismissal is sanctioned.
In summary, the concept of probation is still legal and widely applied but the guidelines above must be considered where an employer wishes to terminate the employee’s service due to their performance. The probation period is not a fixed-term contract and therefore the procedures applicable to permanent employees apply to probationary employees.
ABOUT THE AUTHOR
Sara Blumberg graduated from Nelson Mandela Bay Metropolitan University in 2012 with an LLB degree. She completed her articles at Chris Unwin Attorneys, a boutique legal firm specialising in the field of labour law. It was here that Sara discovered her passion for labour law and gained vast experience in various arenas, including the CCMA and Labour Court.
Sara joined SEESA Labour as a legal advisor in 2015 at the Port Elizabeth office for a change of perspective and a desire to gain more experience in all aspects of labour law. She was admitted as an Attorney of the High Court of South Africa shortly after joining SEESA.