Probation, or the probation period for that matter, is a period that is used to assess and measure the suitability of the employee for the role, as well as to measure the performance of the employee during this time. Naturally, there will be instances whereby it becomes apparent, or it appears that the employee’s performance is not up to the expected level, or the employee is proving unsuitable for the role, for whatever reason. In this regard, when an employer is contemplating dismissing the employee during the probation period in relation to their performance or suitability, employers must be aware that such dismissal is not necessarily the same as an ordinary dismissal in the normal course.
For starters, the Labour Relations Act (LRA), more specifically the Code of Good Practice: Dismissals (The Code), provides guidance regarding dismissals when an employee is still serving their probation period. Much like a normal dismissal, the key elements of ensuring that the dismissal is fair in the circumstances revolve around both substantive and procedural fairness. It is generally the latter element where employers tend to fall short, and some of the more common pitfalls employers encounter are explored below.
Expectations Need to Be Clear
In this regard, it is imperative from the outset of employment commencing that the employer clearly and accurately communicates what is expected of the employee in their role. It is always advisable to reduce these expectations, performance indicators, or desired outcomes in writing so that both parties fully understand the expectations and thereby avoid potential ambiguity and uncertainty later on.
Feedback, Feedback, Feedback
Far too often, it transpires that only right at the end of the probation period does the employer provide the employee with feedback as to where they fell short or where they did not perform adequately. At this stage, it is generally too late, and a common pitfall employers encounter is that an employee is dismissed at this stage and the employer has not provided the employee with any feedback or, more importantly, a chance to improve during the probation period.
This leads to a further pitfall relating to feedback. Feedback on performance, especially where it is identified that the employee is not performing satisfactorily, should be regular and, importantly, must be reduced to writing. This, again, will avoid any uncertainty or potential conflicts further down the line. This written documentation will also become crucial should the employee be dismissed, and the employer needs to attend the CCMA or similar forum to defend the dismissal claim.
Allow Reasonable Time for Improvement
While it is imperative that written feedback is given so too must the employer at least allow a reasonable time for the employee to improve on the areas identified where the employee is not performing satisfactorily. There is no set amount of time to allow, however, the fundamental principle to keep in mind is reasonableness. Each scenario is unique, and the employer should allow sufficient time in that specific scenario for the employee to meet the standard expected.
Guidance, Direction and Assistance is a Must
Closely linked to feedback is guidance. It is not enough to merely point out that the employee is not performing satisfactorily or at the standard expected. The employer needs to provide guidance and direction to the employees on how they expect them to improve or what they should do to improve. Again, when providing feedback, this guidance, training or direction should be in writing and the employee should be given a reasonable opportunity to apply the guidance and meet the required standard.
While the above pointers are some of the most common pitfalls experienced by employers when terminating employees still on their probation period, they are by no means an exhaustive list of pitfalls. Employers should always keep the aspect of reasonableness in mind when dealing with an employee on probation.
Consequently, while probationary periods are a very useful mechanism to evaluate the suitability of employees, employers must proceed with caution when dismissing an employee still on probation. The LRA and the Code should always be the starting point for employers when contemplating a dismissal while an employee is still on probation to ensure they avoid common pitfalls such as those discussed above.
Article By Daniel van der Merwe
National Collective Bargaining Co-ordinator at Consolidated Employers Organisation (CEO SA)