Why is a probation period necessary

A probation period is the period at the beginning of an employment relationship. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance and suitability for employment before confirming appointment.

Length of the probation period

The length of the probation period is not prescribed by legislation. The duration of the probation period should be determined by the employer and must be reasonable, considering the nature of the job and the period in which the employer requires to determine whether the employee can do the job that is expected.

A probation clause

It is essential to add a probation clause to all employment contracts, whether permanent or fixed term. This is a very important period where the parties can get to know each other and where the employer can determine the employee’s capabilities. The employee will be aware of how long the evaluation period will be and should also be made aware that during this period, the employer must advise the employee of any assistance that is required to perform satisfactorily.

Assessment

The employer is required to do continuous assessment where reasonable evaluation, instruction, training, guidance or counselling is given to allow the employee a fair opportunity to render satisfactory service. If the employee is falling short of the standard, the employer should advise the employee where the employee’s work is below standard and grant the employee a reasonable period to bring their work up to standard.

Extending the probation period

An employer may consider extending the probation period or may follow proper procedures to dismiss an employee. A probation period may be extended to further give the employer the opportunity to evaluate the employee’s performance. The extension period should be reasonable and fair. Prior to any of these options being exercised by the employer, the employee must first be given the opportunity to make representations which must be considered by the employer.

Be careful

Probation should not be used to deprive employees of the status of permanent employment. For example, a practice of dismissing employees at the end of their probation periods for reasons unrelated to their performance or suitability for employment and replacing them with newly hired employees is inconsistent with the purpose of a probation period and may constitute an unfair dismissal.

Similarly, if there is a permanent position available, an employer should not appoint an employee on a fixed term contract and conceal the real reason for the fixed term contract. Therefore, an employer cannot use a fixed term contract for each person that is hired until they find the person that is best suited for the job. This may be regarded as an unfair dismissal. If there is no valid reason for a fixed term contract, it may be regarded as a permanent contract until the contrary is proven.

Dismissal

If an employee was dismissed during or after a probation period and the procedures were not followed correctly, or the reason for the dismissal is unfair, an employee may refer either an unfair labour practice or unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). An applicant at the CCMA has 90 days to refer an unfair labour practice dispute and 30 days to refer an unfair dismissal dispute.

Employers must ensure that employees are appointed in line with legislation, using the right employment contracts and following correct procedures during the probation period. Failure to comply with the law will become a very costly exercise when a matter is referred to the CCMA.

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