Is a probation clause better than a 3 month fixed term contract?

Probation clauses can be misunderstood. Some employers like to use fixed-term contracts as a form of probation clause. It is important to work within the bounds of the Labour Law. 

A fixed-term contract is fixed in duration.  If one employs an employee for a fixed period, then legally, the length of the contract is binding until the termination date of the contract (3 months in this case). If an employee is employed for three months, then the employer cannot terminate the services of the employee before the three-month period is complete without a valid termination clause. The implication is that an employer can end up with an employee that is not performing well, despite training and feedback, and the employer will have to see the contract through to its termination date. 

A Fixed term contract can be extended beyond three months for justifiable reasons, as is laid out in the Labour Relations Act. Read more on this under Employer Resources - Fixed Duration Contracts. 

A Probation clause can vary in length. Three months is a standard time in many industries in South Africa. A probation clause gives the employer flexibility to terminate the services of an employee if they are not performing before the probation period is complete.  The probation clause does not allow an employer to terminate the services of an employee illegally. The employer needs to provide the employee with training, feedback and an opportunity to rectify the problem before termination.

This is not a complicated process, and advice can be sought from our labour lawyer. 

Read this blog: The importance of a probation period when hiring new employees.