It is not unusual to find that a contract of employment includes a probation clause. New employees are typically employed on probation for a determinable period considering the nature and scope of the job. The purpose of this is to evaluate the employee’s performance. However, there are instances where probation may be interrupted or may require an extension.


In terms of the code of good practice, the employer should give an employee reasonable evaluation, instruction, training and guidance or counselling in order to allow the employee to perform his/her duty according to the required standards that are expected of such an employee.


As a result of COVID-19, many employees were required to work from home, and with many employees unable to conduct their duties during lockdown, it becomes impossible for an employer to evaluate, instruct, provide training or guidance or counselling to employees. This then begs the question as to whether an employer is authorised to extend the probation period of an employee due to COVID-19.


If an employer is not satisfied with an employee’s progress, the employer may allow for an extension of the probation period, therefore, giving the employee an opportunity to undergo further training or be given an opportunity to improve performance.


In terms of item 8 (1) of the Code of Good Practice: Dismissal contained in Schedule 8 of the Act provides the guidelines for probation, which does allow for an extension of probation. The probation may only be extended for reasons which relate to the purpose of probation. The period of extension must be reasonable enough so which would allow the employee to fulfil the intended purpose of such extension.


For an employer to extend the probationary period, he/she must invite the employee to make representations and consider any representations made. It is also possible for a trade union representative or fellow employee to make representations on behalf of the employee. It is mandatory for an employer to advise the employee of his/her rights to refer the matter to a council having jurisdiction or to the CCMA.


It is also standard procedure to give the employee a notice of extension letter. It is not a requirement that the employee agrees to the extension but should simply acknowledge the contents of the document. It is noteworthy to mention that the extension period must be reasonable. If the employee is of the reasonable belief that such time period is not reasonable, the employee can refer an unfair labour practise dispute to the CCMA.


In conclusion, even though employees may be working remotely, it remains the employer’s responsibility to monitor the performance of the employee and communicate with them areas where improvements in their performance are required. Failure to do so may negate the employer’s advantages associated with incorporating a probationary clause within a contract of employment.


Should you have any questions related to probationary clauses and the effects thereof, kindly contact your closest CEO office.


Article by: Levashnee Moodley

Legal Assistant – CEO Durban