Probation: myths, do’s & don’ts

An employment contract is crucial in managing labour relations. It forms the basis of the relationship between the employer and the employee. It defines the terms and conditions as agreed upon between the parties and regulates their relationship. Furthermore the employment contract describes rules and responsibilities that the employer and employee must adhered to. The employer can implement proactive clauses in the employment contract, such as a period of probation, to eliminate possible future disputes.

The goal of a period of probation

The Labour Relations Act’s Code of Good Practice makes provision for a probation period. The purpose of a probation period is for the employer to assess if the employee’s performance meets the required standard. The length of the probation period will depend on the nature of the job. Therefore, the more complex the nature of the job is, the longer the period of probation will be. The employer can never just terminate an employee’s services. This applies even if the employee is on a probation period and does not perform according to the required standard. Such discrepancies can lead to an unfair dismissal claim against the employer.

What must I as the employer know?

Employers must take note that using a fixed term contract as a probation period constitutes unfair labour practice. Termination of the contract after completion of the fixed term, may be seen as unfair dismissal. Therefore, an employer must clearly understand that to disguise what is actually permanent employment in the form of a fixed contract is illegal.

The employer has certain legal obligations when placing an employee on probation. We recommend that the employer clearly state all of these obligations in writing in the employee’s employment contract. The employer must also explain this to the employee.

The employer has the obligation to:

  • make it clear that the employee is on probation;
  • clarify the length of the probation period;
  • set reasonable performance standards;
  • specify and explain to the employee the performance standards required;
  • evaluate and monitor the employee’s performance regularly against the set performance standards;
  • inform the employee of performance shortcomings;
  • give the employee the opportunity to present more information and explain the situation from his/her point of view;
  • assist, guide, counsel and train the employee where necessary;
  • follow the correct disciplinary procedure or poor work performance procedure, depending on the circumstances.

Poor work performance

Poor work performance is an ever increasing challenge in the workplace. It refers to an employee failing to reach and maintain the employer’s work performance standards in term of quality and quantity. Labour legislation sets clear guidelines of how employers should deal with poor work performance. All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standard set by the employer. Should the employee fail in this duty, despite assistance to reach the required standards, he/she is said to be “incapable” and the employer has the right to dismiss the employee. It is vital to note that the employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair.

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LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

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