A probationary period in an employee’s employment contract, may be inserted by an employer to evaluate the employee’s performance and to determine if he/she will be suitable for the position. However, the probationary period, does not entitle an employer to terminate the employment contract “at will” if the employer is not satisfied with the performance of the employee. Proper process in terms of the Labour Relations Act 66 of 1995 must be followed and the legal requirements must be fulfilled for the “Dismissal” to be substantively and procedurally fair.

An employer is entitled to employ an employee on probation. The duration of the probation period is at the discretion of the employer, who is encouraged to consider the nature of the job and the duration it will take for an individual to be suitable for the position, however the probation period must be reasonable with due consideration of the circumstances.

The purpose of the probation period?

During an employee’s probation period, the employer or the manager of the department in which the employee works, must monitor the employee’s performance and provide constant reporting to the employee. The employer must have meetings and must ensure that there are proper records of the employee’s performance.

Regardless of whether an employee had specified in his/her CV that he/she is qualified for the position, an employer must ensure that the employee is provided with the necessary skills, training and expertise to acquaint and equip himself/herself to carry out the job.

An employer must ensure that the employee is supported through the probation period. The employee must be given the opportunity to state the difficulties incurred, and assistance must be provided.

 

An employer cannot merely state that he/she is unhappy with the performance of the employee and dismiss the employee.

The Code of Good Practice – Schedule 8 of the Labour Relations Act, pertains to Dismissal, and sets out the guidelines for Dismissal due to poor work performance, 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.

An employer must therefore be aware that termination of an employee’s employment contract during probation or failure to appoint an employee at the end of the probation period, amounts to Dismissal. Therefore, an employer and/or the managers must ensure that they have complied with the Labour Relations Act (The Code of Good Practice) and must be able to prove that the requirements have been met to succeed against a claim of Unfair Dismissal relating to probation.

Written by Trisha Pillay on 19 July 2018.

TRISHA PILLAY works in the Labour Department at Alan Levy Attorneys Notaries and Conveyancers. Trisha can be contacted on enquiries@alattorneys.co.za or 011 326 8050.