A probation period for new employees is an excellent way for employers to assess whether or not an employee is a good fit for the organisation and the job for which they have been employed. The probation period also gives an employee the opportunity to work for an organisation and decide if they want to continue with their employment. Probation periods are often misunderstood when it comes to dismissing an employee, so we have set out to explain your legal obligations according to South African Labour Law. 

What is the typical length of a probation period?

In South Africa, the standard probationary period may vary. Most probation periods are three months, but this can vary depending on the position and the employer. According to South African law, “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.”

If an employee comes to the end of their probation period and you do not wish to extend the probation period or continue the employment contract, you cannot dismiss the employee without following due process. 

Probationary period woes? Mastering the art of properly dismissing employees

Some employers mistakenly assume that when they put a new hire on probation, they have the right to dismiss the employee “at will” without having to adhere to any formal regulations. For a dismissal to be substantively and procedurally fair, there is a correct process that should be followed so that legal requirements are met.

From the first day of employment, the performance of an employee on probation must be continually monitored and assessed, with appropriate support and guidance offered.  An essential aspect of the probation period is that employers adequately measure productivity, outcomes and skills and then communicate key development areas to the employee so that the employee has the opportunity to improve. The documented measures safeguard both the employer and employee should you need to terminate the employment contract during or after the probation period. The measurement and feedback process is factual and evidence-based, not personal. 

The following are the general guidelines that need to be followed for dismissal for inadequate work performance as stated in the Labour Relations Act 66 of 1995 schedule 8:

“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.”

Letting go with respect: How to dismiss people professionally and maintain relationships

If all the necessary steps have been followed, including training and support, and there is still no solution, the dismissal process may continue. This should be done respectfully and with dignity towards the employee in order to retain a good relationship.

Here is a suggested process to follow when terminating an employee’s employment contract during the probation period:
 
The assumption is that a clear workplan with expected outcomes and measures is in place and that you have met with the employee to discuss areas for improvement.  Support or training has been put in place to assist them, and the timing of when the improvement is required has been communicated to the employee. Document each intervention for record purposes. If after this process, the employee has not shown improvement, you can follow up with them. 

• Meet with the employee to verbally communicate the reasons for moving towards dismissal (evidence of underperformance through the measures put in place). Allow them to respond. If possible have someone in the meeting with you who is a neutral party. 
• Consider their response, engage with the employee and decide if termination is still appropriate.
• Communicate the termination to the employee in writing including the reasons for termination, any warnings, or minutes of previous meetings held to discuss the lack of performance.
• In line with labour law, employees on probation must have at least one week's written notice of termination.

Always provide a written explanation of why you are dismissing the employee. And in case, as an employer, there is a claim of unfair dismissal at the CCMA, it is advisable to always retain a paper trail of everything discussed and implemented with regard to the employee.

Dismissing someone is never easy, either for the employee being dismissed, or for the employer doing the dismissal, but it can be done in a fair and respectable manner.

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