Are Probationary Periods Legal in South Africa
There is an increasing trend for companies to hire new employees on the basis of a probationary period, and unfortunately in some instances these companies have very little understanding of the legal meaning of probation by being under the incorrect assumption that, by hiring a new employee under on probation it entitles them to simply fire the employee without having to comply with any formal legal obligations.
The purpose of a probationary period is to afford a company the opportunity to evaluate the employee's work performance over a reasonable, mutually agreed upon period of time whereby the employer can determine the employee's suitability for the position that he/she was appointed to based on the employees work performance. The employee is therefore appointed on the basis of a conditional employment contract, meaning that the continuation of his/her employment contract is conditional on whether the employee has demonstrated that he/she is able to carry out the responsibilities defined under the job description.
Since the probation is imposed to specifically review the employees ability to perform the tasks as excepted, and employer may therefore not use the probation as an excuse to fire an employee because he/she simply doesn't fit in or because the manager does not get along with the employee.
Item 8 of schedule 8 of the Labour Relations Act 66 of 1995 prescribes that an employer may only discontinue the employee's contract due to unsatisfactory performance and only after having complied with the following legal obligations:
- The employee must be informed in advance that he/she will be placed on probation.
- The period of probation must be determined in advanced and should be for a reasonable period.
- During the probationary period, the employee's performance should be assessed and the employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.
- The employer must inform the employee if he determines that the employee's performance is below standard by informing the employee of the aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes the employee is incompetent then the employer should advise the employee on the respects in which the he believes the employee is not competent.
- The employer is allowed to extend the employee's probation period in order to further assess the employee's performance. This might occur where the employee shows potential to perform but might have failed in some areas. Before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension.
- Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reason for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has given the employee appropriate evaluation, instruction, training, guidance or counselling; and after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. If the employer wishes to demote the employee as an alternative to a dismissal, then the employee should first have been counselled or given the opportunity to state his case.
Probations can be very useful to employers but must only be applied after the employer has become fully aware of the legal implications and obligations that go along with it. Employers should therefore ensure that they have documented a probationary policy, have set realistic performance standards and have clearly outlined the measures for monitoring and evaluating the employees work performance.
SA Labour Guide Forum(www.labourguide.co.za)