By Judith Griessel, Griessel Consulting – Probation is still alive and well – and it is legal, contrary to what some apparently believe. A probationary clause in the employment contract, and not a fixed term contract, is the appropriate way to “try out” a new employee.
A probationary employee is newly employed on a conditional employment contract – to evaluate the employee’s work performance during the probationary period to ascertain if he/she is able to perform the work at the required standard, before confirming the appointment.
Probation is dealt with in terms of the Code of Good Practice – Dismissal, Schedule 8 to the Labour Relations Act.
- Probation as regulated in terms of the LRA only applies to newly hired employees – not employees who are promoted on a trial basis.
- Probation is not compulsory – the employer can decide if it is necessary when appointing an employee.
- Statutory probation and the applicable requirements, period, etc. must be agreed upon up front in the contract of employment.
- There is no prescribed probation period – the only requirement is that it must be “reasonable” and it depends on the nature of the job.
- The probationary status of an employee is only applicable to issues of work performance (competence) – it has no relevance to misconduct perpetrated by the employee during probation, nor can it be an easy way out for the employer on the basis of an arbitrary issue concerning the employee. All issues other than work performance (competence) must be dealt with in the same way as with any permanent employee. A probationary employee is still entitled to protection by labour law.
Probation also does however also not mean that the employer can fire the probationer “at will” if it is not satisfied with his/her performance. There is a process to follow and legal requirements to be met. The dismissal must be substantively and procedurally fair.
The guidelines for dismissal for poor work performance (in general) are set out in the Code as follows:
“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.”
A probationer’s performance must be monitored continuously from commencement of employment with these guidelines in mind, although reasons for dismissal related to probation may be less compelling than would be required for the poor performance (incapacity) dismissal of a permanent employee who had already completed probation or who had been working for the employer for some time.
A decision at the end of the probationary period not to appoint an employee, amounts to a dismissal. The employer must therefore be able to prove that all of the requirements in the Schedule have been met in order to succeed against a challenge of unfair dismissal relating to probation. The decision to dismiss an employee for unsuccessful probation must be supported by records so that the employer is able to justify its decision. The employer is also obliged to consider other ways, short of dismissal, to remedy the matter.
Line management must therefore actively manage the probationary period and address performance problems during probation by way of continuous evaluation, counselling, instruction, training and guidance – and pointing out to the employee in which areas he/she is not competent. The employee must also be given an opportunity to state what he/she thinks the cause of the non-performance is and how this could be addressed.
In practice, this means that the employer must ensure that line managers and supervisors are aware of these legal requirements and that they should keep detailed written records and minutes (a paper trail) of –
- meetings with the employee (where the employee may have the assistance of a co-worker), or even informal mentoring sessions or on-the-job training and coaching,
- solutions decided upon between the parties to address mistakes / performance,
- reasonable deadlines given for improvement, and
- the result of the measures taken for the employee to attain performance at the required standard.
Note that the employer should not be looking for some improvement in the employee’s performance, but whether indeed the employee has been able to reach the required standard of performance during, or by the end of, the probation period.
The more senior the probationary employee is; or if it is an employee employed as a professional where certain acquired skills and competencies can be expected, the onus on the employer to provide assistance / training / etc. is less onerous.
The probationary period could be extended to further assess the employee’s performance, but this should only be done in exceptional circumstances, and only for reasons elating to probation, such as where the employee has potential but the employer is not yet sure if the employee has resolved all his/her performance issues. It should not be done because the line manager has failed to properly manage the probation in the first place.
The employee must be given the opportunity to make representations, with the assistance of a co-worker / shop steward, before extending the probation period or before dismissing the employee,
The employee must also be advised of their rights to refer the matter to the CCMA / Bargaining Council.
For more information, please contact Judith at firstname.lastname@example.org