Probation is dealt with in terms of the Code of Good Practice – Dismissal, contained in Schedule 8 to the Labour Relations Act. This document states as follows:

(1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job and the time it takes to determine the employee’s suitability for continued employment.

South African lawmakers do not guide employers on what is deemed reasonable for a probation period. They leave it up to the employer, which could be very dangerous.

Employers normally have a 3-month clause in the employment contract as a probation period and feel that it is their right to end the contract due to bad work performance with a notice of 1 week. However, they need to take into account the following stated in the law:

The employer should keep detailed written records and minutes of the various meetings with the employee, detailed records of what was decided upon between the parties to rectify the matter, what period of improvement was decided upon by agreement between the parties, and what the result of the implementation of the agreed rectification measures was.

The impact of this in the workplace is massive as it means that in the first three months, the employer needs to evaluate and communicate to the new employee the problems he has with the employee’s work performance and give him enough time to rectify the issues at hand.

These meetings should be well documented and signed so that all parties know exactly what is expected of them: the employee for work performance and the employer for extra training. If the employee does not react positively and the employer needs extra time to decide if the employee should become permanent, the employer has the right to extend the probation; however, the extension will also be measured if it is reasonable.

The Code of Good Practice is also very clear about what the employer needs to do to end the employment contract during the probation period:

(1) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-

(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and

(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

(2) 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.

(3) In the process, the employee should have the right to be heard in a hearing and to be assisted by a trade union representative or a fellow employee.

The code is very clear about the law’s requirements. Thus, if the employee has not performed satisfactorily at the end of the probation period, the employer cannot simply dismiss him/her.

Points to consider:

• The employer is in his right to have a probation clause in his contract for new employees.
• The employer may extend the probation period as it is within their full right; however, they should be careful as it needs to be reasonable or the employee can take them to the CCMA for unfair labour practice.
• Employees under probation are under the same disciplinary rules as permanent employees, so make sure that they have signed the disciplinary code of your Company.
• The only way to end the contract for work performance is in an incapacity enquiry where all parties can state their case.

It is your business, so guard it from the wrong employees. The only way you can do this is by being involved, counselling, guiding and teaching them to become the best employees they can be and that your business needs.