19 November 2021
A newly appointed employee, subject to the employer’s discretion, may be placed on a probationary period in order for the employer to ascertain whether the employee is able to perform their duties as per the requirements of their employment contract. The length of a probation period is not prescribed by law and is left to the employer to define. The only requirement is that the probation period should be reasonable and in relation to the circumstances of the job.
It is important to remember that only newly hired employees are placed on a probation period subject to the employer’s requirements. All relevant information regarding a probation period should be agreed upon prior to the employee commencing employment as part of the employee’s contract.
Misconduct committed by an employee during their probation period does not automatically warrant a termination of employment. Further to this, the employee may also not be automatically terminated due to poor work performance. It is important that the employer follows the prescribed guidelines before dismissing the employee, so the dismissal is considered procedurally and substantively fair.
The Code of Good Practice contained in Schedule 8 of the Labour Relations Act stipulates the guidelines that employers need to take cognizance of during a probationary period.
It is important that probation should not be used to deprive employees of the status of permanent employment. The practice of dismissing employees who complete their probation periods and replacing them with newly hired employees, is not consistent with the purpose of probation and constitutes an unfair dismissal.
The onus is on the employer to assess the employee’s performance during probation. The employee should be given reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service. If the employer determines that the employee’s performance is below standard, the employer should make the employee aware of the areas the employee’s performance is poor in nature and work with the employee to see if these areas can be corrected.
The employer may consider extending the probationary period or dismissing the employee after it has been established that the employee is not meeting the requirements of the position. Before an extension of a probation, an employee, with the help of a trade union representative or fellow employee, should be invited to make representations and the employer should consider such representations. The extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
An employer may also decide to dismiss the employee after the employee has been invited to make representations and the employer has considered such representations. If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of their right to refer the matter to a council having jurisdiction, or to the CCMA.
It should thus be clear that there are certain boxes that need to be “ticked off” by the employer before a dismissal of a probationary employee takes place. It is however important to note that when making a decision about the fairness of a dismissal for poor work performance during or at the end of probation, such person ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals of permanent employees.
After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has given the employee appropriate evaluation, instruction, training, guidance or counselling; and granted a reasonable period of time for improvement. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.
“In the case of Fraser vs. Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility. She took the matter to the CCMA where the arbitrator agreed that she was indeed guilty of the conduct for which she had been fired. The arbitrator also agreed that this misconduct was serious enough to merit dismissal. Despite this the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges. The employer was therefore ordered to pay the employee compensation equal to four months’ remuneration.”
“In the case of Tharratt vs. Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.”
“In Smith / Patient Focus Africa (Pty) Ltd (2009) 18 CCMA 7.20.1 the employee’s initial probation period was extended due to her poor performance. The employer did initially address the poor performance but failed to do so during the last two months of her employment. The commissioner stated that the employee should have been counselled on her poor performance and she had to be given the opportunity to make representations to the employer prior to deciding whether to dismiss or not. The employee was awarded 1 month of her salary as compensation.”
It is clear that a probation period is a useful tool that can be used to establish a newly hired employee’s performance and suitability for the job. When the probation period is used correctly, the employer avoids further costly investments in an employee that is not suitable for the job.
Do not hesitate to contact Invictus on 0861 737 263 for assistance with employment contracts and managing probation periods.
