Probation

Probation is dealt with in terms of 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 counselling 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 the 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 non-performance, and what he thinks should be done in order to overcome the problem. The foregoing 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 counselling; 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/her. 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.

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

Despite the above employers frequently misuse the probationary status of the employee to get rid of the employee because: 

• the employee has committed misconduct
• the employer wants to make space for a brother, friend or cousin of the owner
• the employee ‘does not fit in’
• a manager ‘does not like the employee’s face’

In fact the labour law meaning of ‘probation’ is ‘testing the employee’s work performance’. That is, the only legitimate purpose of a probationary period is for the employer to assess the suitability of the employee in terms of his/her work performance.

A probationary employee is one who has a conditional employment contract (written or unwritten). That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is or is not able to carry out the work properly. While this describes the purpose of the probationary period it does not mean that the employer has a free licence to fire the probationer if the employer believes his/her performance to be unsatisfactory.

The employer is allowed to extend the employee’s probation period in order to further assess the employee’s performance. This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.

However, before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension. The biggest mistake that employers frequently make is believing that the conditional nature of the probationary employment reduces the probationer’s labour law rights. On the contrary, the employer that places an employee on probation has a number of legal obligations including: 

• Making it clear that the employee is on probation
• Clarifying the length of the probation period
• Setting reasonable performance standards
• specifying for and explaining to the employee the performance standards required
• evaluating and monitoring the employee’s performance against the set performance standards
• informing the employee of performance shortcomings
• issuing warnings to the employee where he/she is failing to meet the required standards
• assisting, guiding, counselling, training the employee where necessary
• before dismissing the probationer, giving him/her an opportunity to state his/her case. 

For example, in the case of Fraser vs. Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility. She took the matter to the CCMA where the arbitrator agreed that she was indeed guilty of the conduct for which she had been fired. The arbitrator also agreed that this misconduct was serious enough to merit dismissal. Despite this the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges. The employer was therefore ordered to pay the employee compensation equal to four months’ remuneration.
             
In the case of Tharratt v Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.

In Smith / Patient Focus Africa (Pty) Ltd (2009) 18 CCMA 7.20.1 the employee’s initial probation period was extended due to her poor performance. The employer did initially address the poor performance but failed to do so during the last two months of her employment. The commissioner stated that the employee should have been counselled on her poor performance and she had to be given the opportunity to make representations to the employer prior to deciding whether to dismiss or not. The employee was awarded 1 month of her salary as compensation.

These cases highlight the fact that probationary employees are strongly protected by labour law. At the same time, probationary employees often do not work out as well as was hoped. While the law allows the employer to dismiss such failures they must follow strict procedures first.

Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in: 

• Designing a probationary policy and procedure 
• Setting realistic performance standards 
• Designing measures for monitoring and evaluating work performance 
• Training management in probation law and in the implementation of the probation policy and procedure.

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