The Code of Good Practice: Dismissals (schedule 8 of the “LRA”) makes specific provision for the employment of a new employee to be subject to a reasonable probation period, to allow the employer an opportunity to evaluate the employee’s performance before confirming the appointment.

Although the employer can decide on the period of the probation, it should be determined by the nature of the job, and the time it takes to determine the employee’s suitability for continued employment. Usually, a probation period is anything between three and six months long and can be extended by the employer if deemed necessary.

In terms of following a fair procedure, the Code states that an employer may only decide to dismiss an employee during probation after the employer has invited the employee to make representations and has considered the representations made. The employee is further entitled to be represented by a fellow employee or trade union representative.

The Code provides that the employer should give the employee reasonable evaluation, instruction, training, guidance, or counselling to allow the employee to render a satisfactory service. The question, therefore, is, “what should be regarded as reasonable?” This will depend on several factors, including the employee’s qualifications, experience, and the seniority of the position in which the employee is employed. In Ismail v B & B t/a Harvey World Travel Northcliff (2014) 35 ILJ 969 (LC), the Labour Court held that the skill and experience the probationary employee alleged he /she possessed at the commencement of the probation, or at the time that shortcomings in performance are identified, would determine what would be “reasonable” in respect of training, counselling, guidance, or evaluation.

Even though an employee on probation is entitled to substantive fairness, a lower standard of fairness is permitted during the probation period. The Code stipulates that reasons for the dismissal may be less compelling than it would be in the case where the dismissal takes place after the completion of the probationary period.

When taking “less compelling reasons” into consideration when deciding on making a probationary employee permanent, the court held in IBM SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others that if the arbitrator has applied her mind to the concept of “less compelling reasons”, which is applicable to the dismissal of a probationary employee, she would have been more sympathetic to the concerns of the employer regarding the employee’s work performance, her compatibility to fit into IBM workplace as well as her general attitude and demeanour.

However, it was made clear in Palace Engineering (Pty) Ltd v Ngcobo & Others (2014) 35 ILJ 1971 (LAC) that even though less onerous reasons can be accepted for dismissing a probationary employee, the employer bears the onus of providing that such a dismissal is fair. If an assessment by an employer is genuine, made in good faith and founded on objectively ascertainable criteria, the scope for interference by an arbitrator with the substantive merits of the employer’s assessment as to the employee’s suitability for a permanent appointment should be substantially limited.

In conclusion, employers should make sure that they act in line with the Code of Good Conduct when deciding on whether to make a probationer employee permanent for it to be fair and reasonable.

Article By: Aletta Eksteen
Dispute Resolution Official – CEO Cape Town