The primary objective of a probationary period is to enable employers to evaluate an employee’s performance prior to confirming their permanent employment. Employers must be mindful that probationary periods in South Africa are regulated by the Labour Relations Act (LRA) and its corresponding with the Code of Good Practice. Furthermore, as stipulated in Section 8 of the Code of Good Practice: Dismissal, probationary periods should not be utilised by employers as a means for unfairly dismissing employees. Rather, their purpose is to afford employees a reasonable opportunity to validate their competence.
In certain instances, employers may determine that the initial probationary period has not provided sufficient time for a comprehensive assessment of an employee’s performance or it may be that the employer is still not satisfied that the employee is able to perform as required. While extending a probationary period is legally permissible, such a decision must be supported by legitimate reasons, such as the necessity for additional time to evaluate performance or the ongoing nature of training or guidance.
When contemplating whether or not to extend the probation period, it is imperative that the employer engage in a formal consultation with the employee regarding the proposed extension, clearly outlining the rationale for the decision and addressing any concerns the employee may have. The employee must also be given an opportunity to make submissions or participate in such decision to extend the probation period. Any submissions made by the employee must be considered when deciding on the best way forward. Naturally, it is highly advisable to document the reasons for the extension and the agreed-upon extension terms in writing, to provide a clear record of the arrangement and to avoid potential disputes at a later stage. Should it be decided to extend the probationary period, it important for the employer to reduce to writing the areas requiring improvement as well as the various interventions to address the shortcomings.
In a scenario whereby the probationary period, or even the extended probationary period has lapsed, and the employer is satisfied that the employee will perform as desired, it is advisable for the employer to communicate with the employee on the way forward in the permanent position and to ensure that all expectations and areas of performance are well understood and communicated. Clear communication is key to ensuring that both parties understand what is required from them in the role and position that the employee fills.
The decision to extend a probationary period is one that should not be taken arbitrarily or lightly. When contemplating an extension of a probationary period, employers must always do so in a fair and reasonable manner to ensure that they do not fall short of the LRA should the matter end up at the CCMA.
Article By Ernest Masupye
Senior Collective Bargaining Co-ordinator at Consolidated Employers Organisation (CEO SA)