Probation

General

Probation is for newly appointed employees only. The purpose of
probation is to establish whether or not the appointee’s performance is of an acceptable standard before permanently employing the employee.

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 company’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 sorting out 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.

Procedure

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 this 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)

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.

Relevant legislation: Labour Relations Act, Schedule 8: Code of Good Practice: Dismissal Section 188
(need to confirm once amendments passed)

FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR YOUR NEAREST CCMA OFFICE