Why probationary periods

A probationary period is commonly included in South African employment contracts, particularly where an employer requires an opportunity to assess whether a newly appointed employee is suitable for the position. However, probation does not mean that an employee has no protection against unfair dismissal or unfair labour practices, nor does it mean that an employee may simply be dismissed because he/she is still on probation. Employers must still comply with the requirements of the Labour Relations Act 66 of 1995 (LRA) and its schedules, the applicable provision in such cases being Schedule 8: Code of Good Practice: Dismissals.

Legislation

It is important to note that probation is primarily regulated by the framework set out in the LRA and the Code of Good Practice, rather than by the Basic Conditions of Employment Act 75 of 1997 (BCEA). The BCEA regulates minimum employment conditions and requires employers to provide employees with written particulars of employment, which should include relevant contractual terms governing the employment relationship. These terms also include probationary periods.

Since 4 September 2025, probation has been specifically regulated by Part E of the new Code of Good Practice on Dismissals, published under General Notice 3470 of 4 September 2025. The new code completely replaced the former code bearing the same name, namely Schedule 8: Code of Good Practice: Dismissals.

Purpose of probation

The purpose of probation is straightforward: it allows an employer to evaluate an employee’s performance and suitability before confirming a permanent appointment. Employers may not use temporary contracts to disguise probationary periods. The Code specifically provides that probation should not be used as a mechanism to repeatedly employ and dismiss employees simply to avoid conferring permanent employment status.

Length of probation

The probationary period must be determined in advance and must be reasonable, having regard to the nature of the position and the amount of time reasonably required to assess the employee’s suitability for continued employment.

Probation and performance

During probation, an employer should not simply wait until the final day and then inform the employee that he/she has failed. The employer should provide reasonable guidance appropriate to the employee, the position and the size of the business. This may include instruction, training, evaluation, or counselling. Employees should also be informed of any areas in which their performance is considered inadequate as soon as the employer becomes aware of them. This ensures that employees have a genuine opportunity to improve during their probationary periods and are afforded a fair opportunity to render satisfactory service.

A common misconception

Perhaps the most common misconception is that an employee can be dismissed without a hearing merely because he or she is still on probation. This is incorrect. Before deciding to dismiss an employee or extend the probationary period, the employer must follow a fair process, provide the employee with a fair and reasonable opportunity to make representations and properly consider those representations. The employee may also be assisted by a trade union representative or fellow employee.

Flexibility

Probation does, however, provide an employer with some flexibility. When determining whether a dismissal for poor performance during or at the end of probation was fair, decision-makers may accept reasons that are less compelling than those required after the employee has completed probation. This recognises the legitimate purpose of probation, namely to determine whether the employee is suitable for continued employment.

Employers should therefore treat probation as an assessment process rather than a “free dismissal period”. Clear performance expectations, regular feedback, proper documentation and a meaningful opportunity for the employee to respond will place the employer in a far stronger position should the employment relationship ultimately need to be terminated.

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