In the context of incapacity, the concept of probation is often incorrectly interpreted by employers who believe that they are within their right to simply terminate the employment contract after an unsuccessful probation period. This misunderstanding of what an employer’s responsibilities entail towards a probationary employee may often lead to costly consequences at the CCMA.
The purpose of the probation period is to evaluate whether a newly appointed employee’s performance is of an acceptable standard before confirming the appointment. However, the requirement of counselling, support and training are often overlooked.
Probation periods should be reasonable and will depend on the nature of the job, which in turn will determine how long it will take to evaluate the performance of the appointee. Whilst a probation period of three months will be sufficient for the position of a secretary, for example, a period of up to six months may be required for a specialised position such as an accountant.
The period of probation should be determined in advance and is usually contained in the contract of employment. If at the expiry of the probationary period, an employer is uncertain as to whether an employee is suitable for a job, the probation period may be extended.
The period of probation may, however, only be extended for a reason that relates to the purpose of the probation and not be disproportionate to the legitimate purpose that the employer seeks to achieve.
The dismissal of a probationary employee is regulated by item 8(1) of Schedule 8 of the Labour Relations Act. The code requires that the appointee be made aware of the standard of performance required and be given proper training, guidance and evaluation. Where the employee falls short of what is expected of him/her, he or she must be informed of this and be given an opportunity to improve.
In the 2019 case of Ubuntu Education Fund v Paulsen and others 11 BLLR 1252 (LAC), the employee was subject to a six month probation period when she was employed as a Supply Chain Coordinator. After her first two months of employment, the appointee was advised that her performance standards were not satisfactory even after her key performance standards were reduced. She was advised that there were serious concerns regarding her performance, and she was found to have performed poorly after she was subjected to five performance appraisals.
The employee attended a poor work performance hearing and was subsequently dismissed on this basis seven months after she commenced employment. At the performance hearing, the employer made representations and demonstrated the employee’s unsatisfactory performance as a result of her lacking and understanding, and ability to carry out her assigned tasks despite having been given assistance and an opportunity to improve.
An unfair dismissal dispute was referred to the CCMA, and the commissioner found the dismissal to be substantively unfair on the basis that, because the probation period has ended, the employer did not consider alternatives short of dismissal. The commission emphasised that the applicant’s permanent employment had been confirmed after the end of the probation period and the employer’s failure to extend the probation period resulted in the impression that her performance was acceptable.
On review, the Labour Appeal Court (LAC) found that an employer cannot be expected to amend the requirements of the advertised position to accommodate limitations of a probationary employee who proved unsuitable. The same court found that when the probationary period expired, the employee was still subject to performance review and evaluation and due to the ongoing process that was being followed, it should have been inferred that the probation period was extended. The court found that the commission had erred in finding that the performance was satisfactory because the employee had been kept on beyond the probation period.
This decision is of value as it confirms the view that the standard for dismissing an employee who is still subject to a probationary period is lower in comparison to an employee who has already passed this period. It is therefore not necessary to have a very formal procedure when dismissing an employee whose standard of performance does not conform to what is required.
However, it should be emphasised that an employer should still apply caution when it comes to incapacity dismissals during the probationary period. An employer can mitigate these risks by applying the following practices:
- Making sure, as far as possible, that appointees have the necessary skill and knowledge to perform the standard satisfactorily prior to making the appointment;
- Making sure that the contract of employment contains a clause pertaining to a probation period (limited-duration contracts may not contain a probation clause as appointees are appointed for the duration of the contract);
- Making sure that upon appointment the performance standard is clearly explained, where possible put in writing and acknowledged by the employee;
- Have regular meetings with the appointee and advise him/her of shortcomings and provide a reasonable opportunity to improve. If the employee’s performance is still lacking, the process must be repeated.
- All interactions with the employee should be recorded and properly documented to avoid evidentiary problems should the matter be referred to the CCMA.
Although an employment relationship may be terminated for reasons relating to poor work performance after the conclusion of a probationary period or in circumstances where there was no probationary period, the value of terminating during a probationary period must not be overlooked. The LRA states that “ Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”. Put differently, a commissioner should more readily accept the employer’s reasons for termination.
Notwithstanding the above, the termination of an employment contract for reasons of poor work performance, whether during or after the probationary period, should always follow a proper consultative-performance management enquiry.