Knowing whether a person you employ is competent to do the job is virtually impossible to say. What to do if the person does not meet the requirements?

It is common practice for employers to require a new employee to serve out a trial period (known as probation). The Labour Relations Act currently provides that a newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job.

Training and guidance
What if the employee does not shape up? The Act provides that, before considering a dismissal, an employer should give the probationary employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service.

If the steps mentioned before are unsuccessful, dismissal becomes a possibility. In these circumstances the Labour Relations Act states that dismissal should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee.

Other ways
To avoid having to follow all these procedures, employers have found other ways of dealing with the matter. One way has been to employ a person on a fixed term contract. This approach can quite easily backfire. There have been cases where employers have been exposed for trying to substitute a fixed term contract for probation. The CCMA or Labour Court ignore a fixed term contract if its purpose was merely to avoid procedures before dismissing an employee.

Easier in future
It would seem that the forthcoming changes in the Labour Relations Act will, however, make it easier to dismiss a probationer. The Act is likely to provide that if the date of dismissal occurs within the first 6 months because the employee failed to meet the required performance standards, the employer need prove only that the dismissal was effected in accordance with a fair procedure.

In other words, an employee should not be dismissed before that employee is provided an opportunity to state a case in response to any allegations made by the employer with the assistance if required of a trade union representative or co-employee.

No formal hearing
The opportunity to state a case need not be a formal hearing. Provided that these procedures have been followed, the employer would not have to prove that there was a good reason to dismiss. Employers should, however, remain cautious until such time as this amendment has become law.

Jan Truter, www.labourwise.co.za

Back to www.bizland.co.za