Probation or Peril? What it means to be a probationary employee in South Africa

A probationary employee is a person conditionally appointed by an employer for a reasonable period of time before being made permanent. The purpose of a probationary period is to evaluate the employee’s work performance. While there is no prescribed minimum period of probation, it is only required that the probation period be reasonable. The conventional probationary period in South Africa is a minimum of 3 months.

 Probationary employees ARE still protected

Many employers are unfortunately under the mistaken belief that a probationary employee does not enjoy full protection under the Labour Relations Act, No.66 of 1995. For example, hiring an individual as a “probationary employee” does not entitle an employer to simply dismiss an employee without following fair procedures, as a decision taken at the end of a probationary period to not appoint an employee as a full time employee, amounts to a dismissal.

An employer must therefore be able to demonstrates that the requirements of the Code of Good Practice on Dismissals have been met, before a decision is taken to dismiss a probationary employee. The decision to dismiss an employee for unsuccessful probation must be supported by adequate records to justify the decision. An employer must also consider alternatives to dismissal, such as extending a probationary period if it would be reasonable for the employer to do so.

Reasons employees might be dismissed at the end of probationary period

Some factors to consider when determining whether a dismissal for poor work performance after the conclusion of an employee’s probation period would be fair include:

• (a) whether or not the employee failed to meet a specific and determinable performance standard; and
• (b) if the employee did not meet the 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.

Probationary employees and legal precedent

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 the case of Fraser vs Caxton Publishers (2005, 3 BALR 323) the employee was dismissed for falsifying her CV and for incompatibility. She referred the matter to the CCMA, which held that the employee was indeed guilty of misconduct and that the misconduct was serious enough to merit dismissal. Despite this, the CCMA found the dismissal to be unfair because the employer had not followed a fair procedure by not affording 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.

Why Clear Policies Are Key to Fair Probationary Reviews

While probationary employees are not always suitable to continue in the position they were employed to fill, and the law entitles employers to dismiss probationary employees on this basis, employers must ensure to follow fair and proper procedures when doing so. To ensure both the employer and the employee are on the same page, employers can have a written probationary policy in place, have clear and determinable performance standards, and have clearly outlined the measures for evaluating and monitoring the work performance of employees.

A probationary employee is a person conditionally appointed by an employer for a reasonable period of time before being made permanent. The purpose of a probationary period is to evaluate the employee’s work performance. While there is no prescribed minimum period of probation, it is only required that the probation period be reasonable. The conventional probationary period in South Africa is a minimum of 3 months.
Many employers are unfortunately under the mistaken belief that a probationary employee does not enjoy full protection under the Labour Relations Act, No.66 of 1995. For example, hiring an individual as a “probationary employee” does not entitle an employer to simply dismiss an employee without following fair procedures, as a decision taken at the end of a probationary period to not appoint an employee as a full time employee, amounts to a dismissal.
An employer must therefore be able to demonstrates that the requirements of the Code of Good Practice on Dismissals have been met, before a decision is taken to dismiss a probationary employee. The decision to dismiss an employee for unsuccessful probation must be supported by adequate records to justify the decision. An employer must also consider alternatives to dismissal, such as extending a probationary period if it would be reasonable for the employer to do so.
Some factors to consider when determining whether a dismissal for poor work performance after the conclusion of an employee’s probation period would be fair include:

• (a) whether or not the employee failed to meet a specific and determinable performance standard; and
• (b) if the employee did not meet the 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.

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 the case of Fraser vs Caxton Publishers (2005, 3 BALR 323) the employee was dismissed for falsifying her CV and for incompatibility. She referred the matter to the CCMA, which held that the employee was indeed guilty of misconduct and that the misconduct was serious enough to merit dismissal. Despite this, the CCMA found the dismissal to be unfair because the employer had not followed a fair procedure by not affording 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.
While probationary employees are not always suitable to continue in the position they were employed to fill, and the law entitles employers to dismiss probationary employees on this basis, employers must ensure to follow fair and proper procedures when doing so. To ensure both the employer and the employee are on the same page, employers can have a written probationary policy in place, have clear and determinable performance standards, and have clearly outlined the measures for evaluating and monitoring the work performance of employees.