Probation is not the easy way out for employers

Contrary to popular belief a probation clause is not a licence to fire the employee at will

Source: Ivan Israelstam
lvan Israelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address:
This article first appeared in The Star. Our appreciation to Ivan and The Star newspaper for permission to publish this article…
Contrary to popular belief a probation clause is not a licence to fire the employee at will. Despite this fact employers frequently misuse the probationary status of the employee to get rid of the employee because:
•the employee has committed misconduct
•the employer wants to make space for a brother, friend or cousin of the owner
•the employee ‘does not fit in’
•a manager ‘does not like the employee’s face’
In fact the labour law meaning of ‘probation’ is ‘testing the employee’s work performance’. That is, the only legitimate purpose of a probationary period is for the employer to assess the suitability of the employee in terms of his/her work performance.
A probationary employee is one who has a conditional employment contract (written or unwritten). That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is or is not able to carry out the work properly. While this describes the purpose of the probationary period it does not mean that the employer has a free licence to fire the probationer if the employer believes his/her performance to be unsatisfactory.
The employer is allowed to extend the employee’s probation period in order to further assess the employee’s performance. This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.
However, before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension.
The biggest mistake that employers frequently make is believing that the conditional nature of the probationary employment reduces the probationer’s labour law rights.
On the contrary, the employer that places an employee on probation has a number of legal obligations including:
•Making it clear that the employee is on probation
•Clarifying the length of the probation period
•Setting reasonable performance standards
•specifying for and explaining to the employee the performance standards required
•evaluating and monitoring the employee’s performance against the set performance standards
•informing the employee of performance shortcomings
•issuing warnings to the employee where he/she is failing to meet the required standards
•assisting, guiding, counselling, training the employee where necessary
•before dismissing the probationer, giving him/her an opportunity to state his/her case.
For example, in the case of Fraser vs Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility. She took the matter to the CCMA where the arbitrator agreed that she was indeed guilty of the conduct for which she had been fired. The arbitrator also agreed that this misconduct was serious enough to merit dismissal. Despite this the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges. The employer was therefore ordered to pay the employee compensation equal to four months’ remuneration.
In the case of Tharratt vs Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was therefore ordered to pay the employee compensation equal to three months’ remuneration.
These cases highlight the fact that probationary employees are strongly protected by labour law. At the same time, probationary employees often do not work out as well as was hoped. While the law allows the employer to dismiss such failures they must follow strict procedures first.
Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in:
•Designing a probationary policy and procedure
•Setting realistic performance standards
•Designing measures for monitoring and evaluating work performance
•Training management in probation law and in the implementation of the probation policy and procedure.

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