A common misconception exists among employers regarding the use of a probation clauses in a contract of employment relating to dismissals and termination of contracts.
Probation is a specific period of time an employee is employed before becoming permanent, 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 give the employer the prerogative to dismiss employees without due process or to terminate the contract of employment upon completion of the probationary period.
Probationary employees are in the majority of cases entitled to the same protection as any other employee.
Schedule 8 of the Labour Relations Act (Code of Good Practice – Dismissal) actually places a number of obligations on the employer regarding employees on probation which include the following:
→ An employer must assess the employee’s performance and communicate these results to the employee during his/her probationary period;
→ An employer should give an employee reasonable evaluation, instruction, training, guidance, or counselling in order to allow the employee to render satisfactory service;
→ An 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 make a decision whether to dismiss the employee, extend the probation or to make him/her permanent;
→ Upon deciding to dismiss or to extend the probation period, the employee should be advised of his/her right to refer the matter to a relevant council or CCMA.
These obligations are only applicable to cases of poor work performance. Dismissals relating to misconduct or operational requirements are subject to the normal procedure.
By simply adding a probation clause in a contract of employment exposes the employer to above obligations.
The only 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.
Employers should understand that it is not a requirement to use a probation clause.
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. If the employee has proven experience in a particular position for example it is best to avoid a probation period.
Employers are advised to implement a “poor work performance”- procedure immediately in cases where new employees do not perform.
Note: A fixed term contract may not be used for purposes of probation.
Article by: MJ Jonker
Dispute Resolution Official – Pretoria