The dos and don’ts of probation

Employers are fully entitled to use a probationary period to evaluate a new employee’s performance and suitability for a particular position, yet this period may not be used to deprive employees of the status of permanent employment. Kay Barnard of MISA’s Legal Department looks at this issue in more detail.

Item 8 of Schedule 8 (Code of Good Practice: Dismissals) to the Labour Relations Act 66 of 1995, gives clear guidelines on how to deal with probationary periods and employees on probation.

It is important for both employers and employees to take careful note of the following points contained in this code:

  • The period of probation should be determined in advance and be of a reasonable duration;
  • The employee’s performance should be assessed during this period and the employer should give the employee reasonable evaluation, instruction, training, guidance and/or counselling throughout this period;
  • If the employee is not performing according to a set standard, the employer must advise the employee where he/she is falling short;
  • The employer may extend the probationary period for reasons relating to the purpose of the probation. This extension, however, should not be disproportionate;
  • The employer may only decide to dismiss an employee or extend the probationary period after the employee was given an opportunity to make representations and the employer has considered any such representations made by the employee.
  • After the probationary period the employee should not be dismissed for unsatisfactory performance unless the employer has given the employee appropriate evaluation, instruction, guidance or counselling and/or after giving the employee a reasonable period of time to improve his/her performance. The employer should also follow a fair procedure before dismissal takes place.

It is clear that even during probation an employee’s services cannot be terminated without the employer following proper procedures.

Remember, we are only a phone call away!

Article by Kay Barnard, MISA Legal Department.

Return to main article