The Code of Good Practice on Dismissal (hereinafter referred to as the Code) contained in Schedule 8 of the Labour Relations Act (hereinafter referred to as the Act) provides employment subject to a reasonable probationary period. For this reason, an employer may require an appointee to work a probation period before confirming their appointment. A probation period allows the employer to assess the employee’s competency before their appointment is confirmed.
The Code does not prescribe a specified period for probation. However, it reiterates that the period must be reasonable, subject to the nature of the work. Furthermore, while on probation, an employer must provide training, guide the employee, evaluate their performance and counsel the employee.
A probation period is not synonymous with fixed-term employment. Section 198B of the Act list grounds that justify fixed-term employment, and probation is not listed under these grounds.
After the employer provides training, evaluates the employees’ performance, guides and counsels the employee, and the employee still does not perform in accordance with the standard required by the company, the employer may commence with a procedure to terminate the employment relationship.
The Code requires that a fair procedure must be applied before the employment relationship can be terminated. In this instance, a fair procedure would be a Poor Work Performance Enquiry.
In most instances, the enquiry would not be concluded during the first meeting, given that it must afford the employee the opportunity to improve their performance. The audi alteram partem rule must be complied with, meaning that the employee must be afforded the opportunity to state his case and give reasons for their poor work performance and recommendations on what assistance can be afforded to him in order to improve their performance. A dismissal based on poor work performance can be justified should an employee fail to improve.
It is clear from the above that an employer may not terminate the employment relationship by mere notice of termination after the probation period, based on the premise that the employee did not perform in accordance with the standard required by the employer. A dismissal resulting from probation without a fair procedure being followed would amount to an unfair dismissal.
It is also essential that employers be cautious when alleging poor work performance. There is a distinguishable difference between poor work performance as an incapacity and poor work performance as misconduct. Misconduct must be addressed by the company’s disciplinary code, while the company’s incapacity procedures must address poor work performance as an incapacity. The probation period cannot be exploited if an employee portrays behavioural issues.
We still experience an increase in enquiries from members misinterpreting the relevant clause in our employment contracts to mean that the employment relationship can be terminated by mere notification. The clause in our employment agreements states that:
- “The employee is appointed for a probation period of ___ (_______) months. The employer shall be entitled to terminate this contract before the expiration of the probation period due to the employee’s misconduct, incapacity or operational reasons. The employer undertakes to follow all relevant procedures and guidelines as set out in the schedules to the Labour Relations Act, 1995, as amended.”
It is evident from the above that before dismissal can be affected, a fair procedure must be followed in order to ascertain procedural fairness, one of the requirements of a fair dismissal. Any misinterpretation of the above clause by the employer will never justify a notice of termination where procedural fairness was not complied with.
In conclusion, employers must be cautious in substituting probation periods with unjustifiable fixed-term employment. The Code guarantees three grounds which permit dismissal, of which the employee’s capacity is one. A dismissal based on incapacity will only be fair if followed by a fair procedure.
Want to know more about probation and the regulation thereof? Contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your details on our website, and a SEESA representative will contact you.
About The Author:
Guilermo Meyer is a Labour Legal Assistant at the SEESA George branch. He obtained his LLB Law degree from the University of South Africa in June 2022.
Resources:
- Labour Relations Act 66 of 1995;
- Schedule 8, Code of Good Practice: Dismissal;
- SEESA Standard Contract (BCEA).