Can an employee be terminated before the end of their probation?

What is a probation period?

The Labour Relations Act, Schedule 8 Code of Good Practice (the Code), item 8 deals with probation. Probation is a trial period for recently hired employees. Typically, probationary periods span three to six months. The purpose of a probationary period is to evaluate an employee’s work performance over a reasonable, mutually agreed-upon period. During this period, the employer can ascertain the employee’s suitability for the position he/she had been appointed before confirming permanent appointment.

Probation can prohibit access to employee benefits, such as pension/provident plans, medical aid and other benefits. Before permanent employment is confirmed, the probationary period serves to discover/identify performance issues of employees. These issues can be addressed in several ways.

The length of the probation period

The Code states that a newly recruited employee may be put on probation for a reasonable amount of time, depending on the position’s requirements. The duration should be decided by the type of work and the time needed to assess whether an employee is suitable for ongoing employment. A financial manager might need six months to have their suitability for the position evaluated, whereas a tea lady may just need one month.

The probationary period should ideally be specified in writing, such as in the employment contract or letter of appointment. Additionally, at the beginning of the employment, the company should clearly communicate what is expected of them during this time. This is normally detailed in a job description or Key Performance Areas.

If the employer is not satisfied that the employee is meeting the required performance standard, the probationary period may be extended, provided that it is reasonable. The extension’s purpose is to give the employee a chance to address the noted flaws. This could happen if the employee has potential but has committed a few mistakes or if there have been fewer opportunities for assessment during the first probationary term. The extension should also be provided in writing.

Nonetheless, the employer must offer the employee a chance to voice concerns about the planned extension before extending the probationary period. The most common misconception an employer makes is to assume that a probationary employee’s rights are diminished due to the preconditions of their employment. Employers often use probation as an excuse to dismiss an employee at any stage during the agreed-upon period. This ultimately leads to unfair dismissal disputes being lost.

What does the employer have to comply with during the probationary period?

The Code says: “Where adequate, an employer should provide an employee with any assessment, guidance, counselling, training, or teaching needed to perform satisfactorily. Before being dismissed during the probationary period, the employee should have the chance to explain their case and receive support from a trade union representative or fellow staff member.”

This implies that the probationer’s performance needs to be closely watched from the start, and any deficiencies in work performance need to be addressed by providing the worker with the assessment, counselling, instruction, training, and direction required to help him meet and sustain the stipulated job performance standard.

Employees must also be allowed to explain why they believe there is inadequate performance and what they believe should be done to address the issue. The employer cannot simply dismiss an employee for not performing satisfactorily at the end of their probationary period without following any processes.

The employer has to be able to demonstrate that the processes mentioned earlier of evaluation, counselling, guidance, and training have taken place and that the employee in question has been given a fair chance to present his case and identify the cause of the issue, as well as to outline and carry out (within reason) the steps he believes are necessary to address the issue.

Under the employment contract terms, managers and supervisors are required to actively oversee the probationary period. They must also handle performance issues during this time by providing ongoing assessments, counselling, training, and guidance and pointing out to the employees the areas in which they need more competence.

Employers must ensure that managers and supervisors know these standards in practice and maintain thorough written minutes and records of everything from consultations with the staff member (in which case a coworker may assist the staff member), informal mentoring sessions and on-the-job coaching and training. Furthermore, agreements were reached by the parties to rectify errors or poor performance, a realistic timeframe was set aside for enhancements, and the outcome of the actions was to help the employee reach the desired level of performance.

The dismissal of employees while on probation

Failure to permanently appoint an employee after probation is equivalent to a dismissal. Therefore, to succeed against a claim of unfair dismissal about probation, the employer must demonstrate that all conditions outlined in the Code have been fulfilled.

If an employee must be dismissed during their probationary period for a cause other than subpar work, all applicable procedural and substantive requirements must be followed. Such terminations could occur as a result of their conduct or capacity. Furthermore, any material breach of contract in the probationary period will lead to dismissal.

Once the employer has completed all procedural and substantive requirements, they will be well within their rights to dismiss an employee at the end of the probationary period. If the probationary period is completed, the individual will become a permanent staff member.

Case law

Tharratt v. Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) concerned a probationary employee dismissed due to subpar work. The CCMA determined that the dismissal was unfair because the employer neglected to investigate the reason behind the subpar performance. As a result, the company was mandated to give the worker compensation equivalent to three months’ salary.

Therefore, the employer must maintain comprehensive written records, including minutes of all meetings held with the employee. Additionally, the employer should keep thorough documentation of the decisions made regarding the matter’s rectification, the agreed-upon period of improvement, and the outcomes of putting the agreed-upon measures into action.

Please contact our offices for sound legal advice if you need help with any probation-related issues.