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Even though appointing new employees on the provision of a probation period or having a probation clause in their contract, has become standard practise in South Africa, much mystery and uncertainty still seems to surround the issue of what a probation period actually means in terms of  the rights of both the employee and employer. The main issue that lands employers at the CCMA is that they mistakenly believe that hiring an employee under a probationary contract or having a probationary clause in the employment contract allows the employer to dismiss an employee at the completion or during the probation period, without any regard to the obligations imposed under the Labour Relations Act, but more specifically the Code of Good Practice: Dismissal (more specifically paragraph 8 and 9).

The reasoning behind a probationary period is to provide the employer with an opportunity to evaluate whether a new appointee is suitable to the position to which s/he has been appointed based on the employee’s performance and ability to carry out the responsibilities as is required by the position. This means that the probation period is only applicable to evaluate the employees’ work performance ability. A probation period may not be used as an easy escape to dismiss a newly appointed employee because the manager does not like him or her or because they do not fit into the business culture.

The misconception regarding probation periods usually touches on this point, with many employers believing that when a probation period is close to its end, they may simply inform an employee that their performance is not satisfactory and end their employment. A termination based on this presumption will be deemed both procedurally and substantively unfair.

It is important to keep in mind that when an employer decides not to permanently employ a new employee after their probation period, such a termination of employment effectively constitutes a dismissal due to poor work performance. For a poor work performance dismissal to be both procedurally and substantively fair, such a decision must be supported by records proving that all requirements of the Code of Good Practice: Dismissal (referred to above)  was met in order to afford the employee a fair opportunity to meet such expectations. These include:

• Records of all training/coaching provided, including on-the-job training and informal mentoring sessions
• Minutes of meetings with the employee
• Solutions to address mistakes and poor work performance
• Reasonable deadlines given for the improvement of poor work performance
• The result of the measures taken to resolve the identified poor work performance

The employer will also need to prove that the procedure leading to the termination of the employment contract included an investigation to determine the reasons for the poor work performance and that alternative to remedy the situation, short of dismissal, was considered and implemented to resolve the problem. This means that the performance of the new employee needs to be monitored and recorded from the first day.

It is therefore important to remember when appointing a new employee that a probation period or probationary clause in the contract is not seen as a “trial period” by an employer. It should be deemed as being the induction/training period of the employee, integrating them into the new business. Employers should therefore remember to monitor the employee’s performance from the start. Also, make it clear from the start what is expected of the employee and how they can achieve it. The employer has a duty to assist the employee where reasonably possible to achieve the standard which is expected of them and to ensure that its standards are indeed reasonable and achievable.

While probation can be very beneficial to an employer when recruiting and building his or her team, it must only be used for the intended purpose. It is advised to consult a labour law expert when drawing up policy regarding probation to:

• Design probationary policy and procedure in line with labour law
• Establish the measures for monitoring and evaluating work performance
• Set realistic performance standards to measure progress
• Train managers on probation law and the implementation of the policy and procedure.

Dismissal for Poor Work Performance (PWP) while Employee is on probation (in a nutshell)

During the probation period the Employer should assess the Employee’s performance. In order to assess it must be clear what is expected of the employee. If it is not clear what is expected of the Employee, he/she should be informed, preferably in writing what is expected of him/her.

The Employee should also be given reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render satisfactory service. It is advisable that the Employer keeps proof hereof. The Employee must also be given some time to have an opportunity to improve.

Should the Employer determine that the Employee’s performance is below standard, the Employer should advice the Employee of any aspects in which the Employer consider the Employee to be failing to meet the required standards. If the Employer believes that the Employee is incompetent, the Employer should advise the Employee of the respects in which he/she is not competent.

The Employer should also then allow the Employee to make representations (i.e. to respond, preferably in writing) to the allegations of incompetency that the Employer is making. After receiving the Employee’s representations, the Employer may then decide to either extend his probation period, or to dismiss. It is not necessary (while the Employee is on probation only) to hold a formal enquiry or “hearing”.