The recent amendment to the Labour Relations Act pertaining to probation has been well received by employers. The purpose and period of and the procedures to be followed during probation are clarified in Schedule 8 of the Act, as amended. But is it really easier now to dismiss an employee on probation?

Reasonable duration
Employers have generally assumed that the probationary period for newly hired employees should be 3 months. This assumption is incorrect. Schedule 8 now provides that the probationary period must be of a “reasonable duration”. The duration of the probationary period depends on the nature of the job and the time it takes to determine the employee’s suitability for continued employment. The employer should determine the probationary period in advance. It is recommended that the period be clearly stated in the letter of appointment or employment contract.

Purpose of probation
The purpose of probation is to provide the employer with an opportunity “to evaluate the employee’s performance before confirming the appointment”. Whilst an employee on probation cannot rely on the same security of employment as other employees, one cannot simply inform the probationer on the last day of probation that he/she has not met the required standards, and terminate employment there and then.

Evaluation
During probation the employee’s performance should be assessed. In so far as it may be necessary, the employer must provide reasonable evaluation, instruction, training, guidance or counselling to the employee. The employer must inform the employee of the areas in which the required performance standards have not been met or in which respects the employee is considered to be incompetent.

Dismissal or extension
If, notwithstanding having been given a reasonable opportunity to improve, the employee still fails to meet the required standards, the employer can do one of the following: Firstly, the employer may extend the probationary period for a period that is reasonable in the circumstances. Alternatively, the employer may, subject to the procedure referred to below, terminate the employee’s services.

Procedural fairness
Over and above the requirements described above, the employer may only terminate the employee’s services if the employee has been granted the opportunity to state his/her case and to make representations. A trade union representative or fellow employee may make representations on behalf of the employee. If the employee is dismissed, he/she must be advised of the right to refer the matter to the CCMA or the relevant Bargaining Council.

Substantive fairness
To what extent could an employer’s reasons for dismissing a probationer be questioned? The Code of Good Practice states that “less compelling reasons” for dismissal would be accepted if an employee were dismissed during or on expiry the probationary period.

Although not much seems to have changed, employers now at least have clear guidelines on how to manage probationers.

Jan Truter, www.labourwise.co.za

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