Unpacking probation – What are Employer’s obligations towards the Probationary Employee during the period of probation
21 Jan 2021
Item 8 of the Code of Good Practice: Dismissal – which is incorporated into the Labour Relations Act 66 of 1995, deals with all issues relating to the probation period of the Employee. According to the aforementioned Code of Good Practice, an Employer may require a newly hired Employee to serve a period of probation before the confirmation of the Employee’s permanent appointment.
What is the purpose of probation?
The purpose of probation is for the Employer to establish whether or not the Probationary Employee’s performance is of an acceptable standard prior to offering permanent employment to the Probationary Employment. A probationary period should be reasonable. There is no hard and fast rule in our labour legislation, but the probation period is usually dependent on the nature of the job and the seniority of the role, which in turn will determine how long it will take to establish whether the Employee is performing satisfactorily and up to the Employer’s acceptable standard of work performance, or not.
As a general guideline (again there is no hard and fast rule) the more complex the nature of the job, the longer the probationary period. For example, a shorter period of time may be sufficient to evaluate the performance of a personal or administrative assistant whereas a longer period may be appropriate for example, a Lawyer or Engineer.
Ensuring clarity on details of the Probation between Employer and Employee:
It is highly recommended that the probationary period and its conditions being the performance expected and job description be stated in writing, as part of the employment contract or letter of appointment. The Employer’s expectations during the probationary period should be communicated clearly to the Employee in writing and in regular feedback sessions with the Probationary Employee’s direct supervisor or manager in order to discuss any shortcomings or issues and how to correct same during the probation period.
The Employer cannot merely dismiss a Probationary Employee during probation or at the end of the probation period if the Employer did not attempt to correct and assist with improving work performance via regular feedback discussions, guidance and even training if needed. If the Employer merely dismisses the Probationary Employee without the aforementioned guidance, training, feedback sessions and providing the Probationary Employee with an opportunity to improve, the Probationary Employee may have reasonable prospects of success in referring an unfair dismissal dispute related to probation to the CCMA or relevant Bargaining Council.
Can the probationary period be extended?
The probationary period may indeed be extended. If the period is extended, it should once again be recorded in writing. The purpose of the extension is to give the Probationary Employee an opportunity to improve on the identified shortcomings as discussed hereinbefore and utilize corrective measures first to assist with improvement rather than just dismiss the Employee. However, it must be noted that a Probationary Employee can decline an extension to the probation period.
Conclusion – timeframes to refer disputes:
The Probationary Employee may refer an unfair labour practice dispute concerning an act or omission relating to probation to the CCMA or relevant Bargaining Council within 90 days of the act or omission. Where a Probationary Employee has been dismissed, such a dispute may be referred to the CCMA or relevant Bargaining Council within 30 days of the date of dismissal.
- Protocol for dismissing an employee for poor work performance
- The CCMA – What’s it all about?
- Workplace Law 13e (eBook)
- Individual employees cannot rely on section 187(1)(c) of the LRA to claim that their dismissals are automatically unfair
- Guidelines for disciplinary hearings in the workplace