Probation clauses can be misunderstood. Some employers like to use fixed-term contracts as a form of probation clause. Here is what you should consider.
The fixed duration 3 month contract option.
A fixed-term contract is fixed in duration. If you hire an employee for a fixed period, then legally, the length of the contract is binding until the contract's termination date (3 months in this case). Suppose an employee is employed for three months. In that case, the employer cannot terminate the employee's services before the three-month period is complete without a valid termination clause. The implication is that an employer can end up with an employee not performing well despite training and feedback. In this case, the employer must complete the employment contract until 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.
Something many employers need to consider when putting employees on a 3-month contract is that you do not always attract the best talent for contract roles. Many people seek job security, and permanent roles are more attractive than contractual jobs.
The permanent contract with a probation clause option.
The length of a probation clause in a permanent contract can vary. Three months is a standard time in many industries in South Africa. A probation clause allows the employer to assess and terminate an employee's services if they are not performing before the probation period. However, the clause does not allow an employer to illegally terminate an employee's services. The employer must provide the employee with clear KPIs, measures, training, feedback, and an opportunity to rectify the problem before termination.
Working through a disciplinary process is simple when the employer has a well-written employment contract and documented guidelines for what is expected from the employee and how this will be measured.
Read this blog: How to correctly dismiss an employee during the probation period.
