A common misconception still exists among employers regarding the use of probation clauses in a contract of employment relating to dismissals and termination of contracts.

 

Probation is a specific period an employee is employed before confirming permanent employment, the purpose of which is to establish whether the employee meets specific criteria and is suitable for the job.

 

Appointing a person on probation does not provide the employer the prerogative to dismiss employees without due process or to terminate the contract of employment upon completion of the probationary period as probationary employees are entitled to the same protection as any other employee.

 

Schedule 8 of the Labour Relations Act (Code of Good Practice – Dismissal) places several responsibilities on the employer regarding employees on probation which include the following:

  • The employer must assess the employee’s performance and communicate the same with the employee during his/her probationary period;
  • The employer should give an employee reasonable evaluation, instruction, training, guidance, or counselling to allow the employee to render satisfactory service;
  • The employer must advise the employee of his/her required targets and goals during the probationary period, and any shortcomings which may occur;
  • The employee must be invited to make representations to the employer once the employer has informed the employee that he/she has failed to meet the required standard of work or is incompatible with the employer;
  • The employer must consider these representations and decide whether to dismiss the employee, extend the probation or to employ him/her permanently;

 

These obligations mentioned above are only applicable to cases of poor work performance and not relevant to dismissals relating to misconduct or operational requirements as they are subject to other procedures and/or guidelines.

 

An advantage of including a probation clause in a contract of employment is that the reason for dismissal may be less compelling than would be the case in dismissals effected after the completion of the probationary period or in cases where no probation period was applicable. Even this aspect should be approached with caution, and it is only applicable to dismissals relating to poor work performance.

 

In conclusion, employers should note that it is not a requirement to use a probationary clause and it is, therefore, advisable to evaluate each employment position on its own merits and to decide whether it is, in fact, necessary to include a probation clause in the contract of employment. Should the employer choose to include a probationary clause and the employee fails to meet the specific performance criteria, the probationary period may be extended to further assess the employee’s performance, but this should only be done in exceptional circumstances, and only for reasons relating to probation.