It’s not a new phenomenon to be a new employee who must first survive the probation period when starting a new job. Why are probation periods important? Simply put, it is important because it allows an employer to assess if the employee is suitable for the position they have been appointed for and if the employee is a good fit for the company overall.
If your employer decides that they do not like you or your work performance is not up to scratch, can your employer terminate your contract on the day that your probation ends? The short answer is yes, but it must be done in accordance with the law.
Let’s unpack this for a moment.
What does the probationary period mean for employees and employers?
According to Schedule 8 of the Labour Relations Act, 66 of 1995, as amended (“LRA”), an employee that is on probation is still considered an employee of the employer. They are not categorised into a special type of employee whereby they will only receive certain legal benefits and protections or none at all until they become permanent.
An employee on probation benefits from the full benefits, protections and rights in terms of the LRA and the Basic Conditions of Employment Act, 75 of 1997, as amended (“BCEA”).
Schedule 8 of the LRA states that an employer has the right to place new employees on probation for a period that is reasonable given the circumstances of the job. Usually, the probation period is for 3 months but some probation periods could go up to 6 months, depending on the complexity and seniority of the role. Anything beyond 6 months would appear unreasonable in the circumstance unless it can be properly justified by the employer.
What should happen when an employee is on probation?
Once an employee is placed on probation, an employer should give the employee the necessary support and training from day one up until the probationary period has come to an end. Your employee must be aware of the standards and expectations always associated with the job at all times.
Section 8 of Schedule 8 of the LRA goes on further to state that during the probationary period or after it expires, the employee should not be dismissed for unsatisfactory performance unless:
- the employer has investigated and established the reasons for unsatisfactory performance;
- the employer gave the employer appropriate evaluations, instructions, training, guidance, or counselling throughout the probationary period;
- the employer gave the employee a reasonable chance and timeline to improve their performance; and
- after a reasonable period of time for improvement, the employee continued to perform unsatisfactorily.
If the employee is still not performing according to the employer’s standards, then the employer can begin dismissal procedures. Dismissal should always be the last resort and an employer cannot just dismiss the employee on the spot without taking the above steps to address the poor performance.
It is worth noting that Schedule 8 of the LRA only speaks of poor work performance. If an employee is guilty of misconduct during the probationary period, there are other steps that the employer must take to address the misconduct.
Important things to note during this period
It is important for employers to record everything in writing. Detailed records are an employer’s best form of protection if a claim is brought against them by a disgruntled employee.
It serves as documentary evidence that a fair procedure was followed, and that the employee was given a reasonable period of time to improve their performance.
An employer should keep detailed written records of the minutes of all meetings with the employee, especially if those meetings were about the employee’s performance at work during this period.
An employer must keep records of any solutions that were agreed to by both parties and any timelines and periods given to the employee to improve their performance.
Employees who are on probation are still employees in terms of the law. They are entitled to the rights and protection under the LRA and BCEA. Employers have an obligation to monitor new employees’ performance from day one.
Any shortcomings or sub-par work performance must be addressed immediately by giving the employee feedback, guidance, training, and support. The new employee must be given fair chance to increase their work performance.
An employee who is not performing during their probation period must be given proper guidance and a chance to correct their performance. If they are still not up to standard, the employer can begin dismissal procedures in accordance with labour law and practice.
– Rushni Ebrahim