Probationary Periods and What an Employer Needs To Do

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If you’re an employer who has recently hired new employees you would have more than likely included in the employment contract a probationary period also known as “a grace period”, however, how aware are you as to what exactly it is that you need to do in this period? Especially, to avoid any labour related mishaps.  

One of the biggest mistakes that employers frequently make is believing that the conditional nature of a probationary period reduces an employee’s labour related rights and the importance and practicality behind probationary periods. In this blog we’re therefore going discuss probationary periods to better understand the requirements imposed by law on these periods.

What is a probationary period?

Let us first unpack what the definition of probation is and what’s the significant purpose behind this period.

A probationary period refers to a period of time that an employee is exempt from certain permanent contractual items. Employees are most importantly exempt from those terms linked to the notice period that is required for the termination of employment. The purpose of a probationary period is rooted in the aim of evaluating an employee’s work performance over a reasonable and mutually agreed-upon time period, during which the employer can determine the employee’s suitability for the position they have been appointed to prior to confirming permanent appointment.

In a nutshell, a probationary period enables both parties to the employment contract to assess whether an employee is a great fit to the job’s requirements. Where an employee is unfortunately not best suited to the position, a probationary period allows for an easier termination of the employment relationship, without any complications attached to it.

The Labour Relations Act and probation

As this is a labour related matter, we most definitely cannot exclude the regulating Act that governs all labour related matters, which is the Labour Relations Act 66 of 1995 (“LRA”).

Schedule 8 (8) of the LRA deals with probation and states that an employee’s probationary status, is only applicable to matters that are relevant to their work performance or competency. Other issues, such as an employee’s misconduct during this period, are of no concern to the Act and should be treated similarly to that of a permanent employee. The LRA further ensures the full protection of an employee’s labour related rights during this period and does not permit an employer to use a probationary period as a basis of an arbitrary claim against the employee.

What needs to be done during the probationary period?

Firstly, employers are expected to manage the probationary period in such a manner that is consistent with the contract of employment. They are also expected to address any performance related issues that may occur during the probation period. Employers can do this by way of continuous evaluation, counselling, instruction, training, and guidance. Employers may then sit down with an employee and identify any areas of shortfall, in which they are not performing to the best of their ability or aren’t competent enough.

An employee must also be granted the opportunity to state their respective case, in defence of any claim made against their performance and how these issues could possibly be addressed going forward.

The case of Tharratt vs Volume Injection Products (Pty) Ltd, provides a great example of a similar situation where an employee on probation was dismissed for poor work performance. The employer had failed to conduct an investigation as to the reason or cause of said poor performance. The CCMA found the dismissal to be unfair and the employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.

Although, probationary periods generally allow for the avoidance of unfair dismissals on the part of an employer, employers must first follow strict procedures to assess an employee’s potential and ability with dismissal being a last resort. Probationary periods further allow for the element of growth and the identification of employment potential within employees.  

Secondly, employers are allowed to extend an employee’s probationary period in order to further assess an employee’s performance. This might occur in instances where the employee shows promise and potential, but there are some issues with performance or the opportunity for evaluation, at the start of the period, has been reduced. There is therefore no specific time period in which a probationary period must run apart from that outlined in an employment contract between the two parties.

Thirdly, for the duration of the probationary period, an employer, must ensure that its managers or supervisors are well aware of the following requirements and that they keep detailed written records of:

• The meetings, informal mentoring sessions, or on-the-job training and coaching held with an employee;
• Possible solutions decided upon by the employer and employee, to address issues or under-performance by the employee;
• Reasonable deadlines given for improvement; and
• Lastly the result of the measures taken for the employee to reach the performance standard.

Conclusion

Employers must understand that probationary periods do not promote unfair dismissals nor an easy escape to dismiss an underperforming employee. Although employers have the right to terminate employment following an unsatisfactory probationary period, in terms of the LRA, employers must first take all reasonable measures possible to assist an employee to perform their role to the fullest extent possible before considering termination.

– Natasha Nekuta

– Edited by Lauren van der Byl

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