Labour Law

Employment – Probation

By 15/04/2014 No Comments

Probation refers to a specified period of time a person (employee) is employed before becoming permanent. This period is referred to as a Probationary period the purpose of which is to establish whether or not the employee’s performance meets a certain standard. The probation period will depend on the nature of the job and as a general guideline the more complex the nature of the job the longer the period of probation will be. The following facts on probation and probationary periods can assist in understanding their legalities:

  • Probationary periods may range between 1 – 6 months, depending on the nature and scope of the job;
  • Probationary periods may be extended or dispensed with on good reason;
  • The probationary period and expectations of the employee during the probationary period must be clearly stated in writing and should as a general rule be contained in the employees initial employment contract, which the employer must explain to the employee so he/she clearly understands the same;
  • If the probation period is extended by the employer, this extension should also be done in writing and relayed to the employee;
  • If an employee fulfils his duties and performs adequately during his/her probationary period, there is a reasonable expectation on the employer that the employee should be made permanent;
  • If an employer decides to dismiss an employee during the probationary period for reasons other than poor performance, the employer has a duty to adhere to the normal requirements of procedural and substantive fairness;
  • If a retrenchment process has become necessary for an employer during an employee’s probationary period, a consultation process should be followed prior to the retrenchment process proceeding.

If, by way of example, an employer has employed a person on a probationary period of 6 months and fails to extend the period of probation or indicate to the employee that he/she is not performing according to the required standard, but nevertheless terminates the employees services, this will be cause for concern and an employee will have a case against the employer. Another issue which may arise is where an employer does not provide the employee with adequate evaluation, instruction, training, guidance, or counseling during the employees probationary period, and then decides not to make the employee permanent. These kind of issues could lead to an unfair dismissal claim against an employer.

On the other hand and by way of example, an employee has been on probation for a period of 6 months and the employer has adequately evaluated, trained, guided and provided feedback to the employee during this time, but nevertheless the employee has not met the employers required standard of work, sufficient grounds exist for the employer to dismiss the employee or terminate his/her service on expiration of the period of probation. The employer will however be obliged to follow the following process:

  • An employer must have assessed the employees performance and communicated these results to the employee during his/her probationary period;
  • An employer must have advised the employee of his/her required targets and goals during the probationary period, and any shortcomings which may have occured;
  • Once an employer has informed the employee that he/she has failed to meet the required standard of work or is incompatible with the employer, the employee must be invited to make representations to the employer, including reasons as to why he/she should not be dismissed or why his/her probationary period should be extended, or why he/she should be made permanent;
  • The employer must then consider these representations and make a decision whether to dismiss the employee or give the employee another chance;

It must be kept in mind that the principals of procedural and substantive fairness must always be followed and met in instances involving dismissals, the failure to renew a fixed term contract, a dismissal during a probationary period, and/or in instances where an employer is embarking on a retrenchment process.

The only difference with labour matters involving an employee on probation is that the requirements for dismissal are less onerous. Thus provided the employee is given an opportunity to respond to the charges a disciplinary enquiry may not be necessary. (Note be very cautious on this aspect)

Another difference is that the employer reasons for dismissal maybe less compelling during the probationary period (again be cautious) .
Relative legislation:

  • Schedule 8 of the Code of good practice: Dismissal
  • The Labour Relations Act 66 of 1995 – Section 185 onwards
  • The Basic Conditions of Employment Act

Warren Sundstrom

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.