Employees are one of the most valuable assets in a company, especially having the right employees. Therefore, employers often need to “try out” the employees to see if they have the necessary skills and will be compatible with their new working environment.
That is where probation comes in. The purpose of a probation period is for the employer to assess if the employee’s performance meets the employer’s required standard over a reasonable mutually agreed period.
Some employers are under an incorrect assumption that appointing a new employee under probation entitles them to use probation as an excuse to dismiss the employee if they do not fit in, without having to meet formal legal obligations.
A probation clause can be included in employment contracts, whereby the probation period’s length will depend on the nature of the work. It is advised that any probation period be done in writing.
An employer must give the employee instructions, training, guidance and counselling to deliver satisfactory work. An employer will need to prove that they have been given the said training and guidance. If the employee fails to meet the required standards or is incompatible, only then will they be able to take steps against the employee for poor work performance. It is crucial that the employee must be informed about any shortcomings and given reasonable time to work on those shortcomings.
Probation is dealt with in the Labour Relations Act (LRA) under the ‘Code of Good Practice – Dismissal’, Schedule 8.
The Act outlines the following:
“Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly hired employees is not consistent with the purpose of probation and constitutes an unfair labour practice.”
Suppose an employer wants to dismiss the employee on any grounds of misconduct during their probation period. In that case, they will need to follow the same disciplinary steps as in the case of permanent employees. During the probation period, the employee is still entitled to the full protection of labour laws.
A probation period may be extended, within reason, if the employer is convinced that the employee has not performed up to standard and needs more time for training, guidance and evaluation. Again, it is advised that this be done in writing.
An employer needs to keep the following in mind during a probation period:
- Any meeting minutes pertaining to the probation, training, guidance and counselling sessions;
- Plan on how to solve the performance issues/problems;
- Deadlines, which should be reasonable, and the results of work performance evaluations.
In addition, the employee must be given an opportunity to state what they believe the cause of the non-performance is and what they think should be done in order to overcome the problem. The foregoing is a requirement.
In the case of Tharratt vs Volume Injection Products (Pty) Ltd (2005, 6 BALR 652), the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance, the CCMA found the dismissal to be unfair. The employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.
Employers should ensure that they have a written probationary policy, have set realistic performance standards, and have clearly outlined the measures for evaluating and monitoring employees’ work performance.
In conclusion, probation can be a handy tool for an employer. Still, it should only be used after an employer has become fully aware of the legal obligations and implications that go along with it.
Article By: Su-Mari Kemp
Dispute Resolution Official – CEO Kuruman