Probation, an oft tricky and sometimes poorly understood concept that tends to catch unknowing employers out only once a matter is at the CCMA or relevant dispute resolution centre. While probation has many facets to it, the purpose of this article is to briefly canvas the legal and practical principles surrounding probationary periods.
In its simplest form, probation or a probation period is a period of time at the commencement of employment that offers employers a valuable opportunity to evaluate the suitability and performance of newly appointed employees before confirming them as permanent employees. During the probation period, employers have the opportunity to assess whether an employee is capable of fulfilling the role and meeting the organisation’s expectations.
In order to best protect both the employer and the employee during this period, the legislation, the Labour Relations Act (LRA) and more specifically the Code of Good Practice: Dismissal provide guidance and insight on the legal aspect of probation.
While the Code of Good Practice gives a detailed description of probation and some of the fundamental principles it espouses, for the purposes of this article an exploration of two of the most important aspects of probation at the outset of commencing with employment in terms of the probationary clause will be explored below:
Reason for Probation
Probation should not be used as an arbitrary tool to try and circumvent the responsibilities of the employer towards the employee or to try and mitigate permanent employment of the employee. Probation should be used for the right purpose so as to properly assess and ascertain the employee’s performance and whether the employee will be a suitable fit for the organisation in light of their performance or suitability.
It often transpires that there is an intermingling between probation and the purpose thereof and fixed-term contracts whereby a prospective employee is given a fixed-term contract to assess their performance or suitability for a position. This practice is a common pitfall, and employers should be aware of the difference between a fixed-term contract and a probationary period in terms of permanent employment as well as understanding the ramifications of both.
Duration of the Probationary Period
The length of probationary periods should be reasonable and generally agreed upon in the employment contract. There is no specific or pre-determined duration of probationary periods, in this regard, the Code of Good Practice indicates that a probationary period should be reasonable in relation to the nature of the job and should provide sufficient time to gauge the employee’s suitability for the position. For example, a professional highly qualified employee appointed to a very technical role may have a longer probationary period as opposed to an unskilled labourer due to the nature of the role or position and the time required to ascertain the employee’s suitability or performance.
In conclusion, in an ever-evolving workplace where remaining competitive is paramount, probationary periods when used correctly, serve as an essential mechanism for both employers and employees to assess compatibility and suitability for a role to ensure organisational success. The legal framework, governed primarily by the LRA and Code of Good Practice, ensures that this period is not used to exploit employees but rather is used to fairly evaluate the employee and to ensure the employer obtains the necessary performance they require out of the role.
Article By Daniel van der Merwe
National Collective Bargaining Co-ordinator at Consolidated Employers Organisation (CEO SA)