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During the past two weeks, I have been inundated with inquiries from employers regarding employment on probation. Whether this indicates that it is now the season for taking on new employees, or whether it indicates that employers are experiencing problems relating to probation, I do not know.
Although we have addressed this issue previously in our weekly newsletters, I am going to do so again in the hopes of clearing up any myths, mysteries or problems. The guideline document is the Code of Good Practice – Dismissal, contained in Schedule 8 to the Labour Relations Act. This document states as follows:
(1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment.
Quite obviously, the lawmakers have no desire to prescribe to employers regarding the duration of the probation period. Thus, they leave it to the employer to define the duration, stating only that it should be reasonable and in relation to the circumstances of the job. Thus, the employer decides this matter. There is nothing to indicate that the new employee must be employed on probation - that is for the employer to decide. Employees can also be employed without a stipulated probationary period.
The Code states further :
"When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counseling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. "
This means that the probationer's performance must be monitored from day one, and any shortcomings in work performance must be addressed, by giving the employee be necessary evaluation, counselling, instruction, training and guidance in order to assist him to achieve and maintain the required work performance standard. In addition the employee must be given an opportunity to state what he thinks is the cause of the nonperformance, and what he thinks should be done in order to overcome the problem. The aforegoing is a requirement. It must be done.
The code continues by stating :
(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
(a) given the employee appropriate evaluation, instruction, training, guidance or counseling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.
These are very clear requirements. Thus, at the end of the probation period, if the employee has not performed in a satisfactory manner, the employer cannot simply dismiss him. The employer must be able to show that the above procedure of evaluation, counselling, guidance and training has taken place, that the employee has been given a reasonable opportunity (with the assistance of a fellow employee or representative (if required) to state his case and to state what he thinks is the cause of the problem, and to state and implement (within reason) what measures he suggests are required to rectify the problem.
Obviously the employer also implements whatever measures he considers necessary to solve the problem. The code gives the following guidelines regarding dismissal:
" Any person determining whether a dismissal for poor work performance is unfair should consider-
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not-
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
Thus, the employer should keep detailed written records and minutes of the various meetings with the employee, detailed records of what was decided upon between the parties to rectify the matter, what period of improvement was decided upon by agreement between the parties, and what the result was of the implementation of the agreed rectification measures.
Should the employee refer a dispute of unfair dismissal to the CCMA, the employer would be required to show, by documentary proof, that he has complied with all the above requirements stipulated in The Code of Good Practice Dismissal. Regarding the extension of a probationary period, we do not believe that the extension of a probationary period will achieve any good purpose unless there is a specific justification for doing so.
In our view, the employer is the best person to judge how long a new employee needs to settle into the job, to show that he will further into the general corporate culture, that he will be able to get along with his colleagues in the workplace, and to show that he will generally fit in and become an asset to the company.
If a period of probation is decided upon, and agreed with the employee, and the employee fails to come up to expectations during the agreed probation period, then there would be no reason to believe that an extension of time, in itself, will solve the problem. Employers should think very carefully before extending what has already proved to be an unsuccessful probationary period. It must be pointed out that employees on probation are still employees, and thus they will accrue benefits such as annual leave, sick leave etc, from the first day of employment.
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