Many employers mistakenly believe that an employee on probation has fewer rights and can simply be dismissed if performance is unsatisfactory. However, under South African labour law, an employee on probation enjoys the same fundamental rights as any other employee, and dismissal during probation must still be both substantively and procedurally fair.
Employee on probation arrangements are regulated by the Code of Good Practice: Dismissal contained in Schedule 8 of the Labour Relations Act (LRA). The purpose of probation is to give the employer an opportunity to assess whether a newly appointed employee is suitable for the position and capable of meeting the required performance standards. During this period, employers are expected to provide guidance, training, evaluation, and reasonable opportunities for improvement before considering dismissal.
What Is a Probation Period?
A probation period is a trial period at the start of employment where the employer evaluates the employee’s work performance, conduct, compatibility and overall suitability for the role.
The Labour Relations Act does not prescribe a specific probation period. Instead, it states that the duration must be reasonable and should depend on factors such as:
- The nature of the job
- The complexity of the work
- The time required to properly assess performance
Employers therefore have discretion to determine the probation period, provided it is fair and reasonable under the circumstances.
It is also important to note that probation is not compulsory. An employer may decide whether or not to appoint an employee on probation.
Employers Still Have Legal Obligations
Although an employee is on probation, the employer cannot simply terminate employment without following a fair process.
South African labour law requires employers to actively assist probationary employees to succeed. This means employers should:
- Clearly explain performance expectations
- Provide training and guidance where necessary
- Monitor performance regularly
- Identify shortcomings early
- Offer counselling or support to improve performance
- Give employees a reasonable opportunity to improve
Performance management during probation should begin from the first day of employment. If problems arise, the employer must engage with the employee and attempt to correct the issues before considering dismissal.
Can an Employer Dismiss a Probationary Employee Immediately?
No.
If an employee is not meeting the required standard, the employer must first investigate the reasons for the poor performance and consider alternatives to dismissal.
The employee must also be given an opportunity to respond to the concerns raised against them. They may be assisted by a fellow employee or trade union representative during the process.
In practice, this means the employer should hold discussions with the employee, explain where performance is lacking, and provide an opportunity for improvement before dismissal is considered.
Fair Procedure Is Essential
Before dismissing an employee for poor work performance during or after probation, the employer should be able to show that:
- The employee knew what standard was expected
- The employee received guidance and support
- The employee was warned about shortcomings
- A reasonable opportunity to improve was given
- The employee was allowed to state their side of the matter
- Dismissal was an appropriate and fair outcome
Employers should keep detailed written records of meetings, counselling sessions, warnings, training provided and any agreed improvement plans. These records become critical if the matter is later referred to the CCMA.
Misuse of Probation
Many employers misuse probation by believing it gives them a “free pass” to terminate employees easily. In reality, the law only allows probation to be used to assess work performance and suitability for the position.
Probation should never be used to dismiss employees because:
- Management dislikes the employee personally
- The employee “does not fit in”
- The employer wants to appoint someone else
- The employer wants to avoid disciplinary procedures
If misconduct occurs during probation, the employer must still follow the normal disciplinary procedures applicable to all employees.
Extending a Probation Period
In some cases, an employer may extend probation if the employee shows potential but requires additional time for assessment or improvement.
However, the employee must first be informed of the proposed extension and given an opportunity to make representations before the extension is implemented.
Employers who extend probation unfairly or without justification risk disputes being referred to the CCMA as unfair labour practices.
Important CCMA Cases
South African case law has repeatedly confirmed that probationary employees are protected by labour law.
In Fraser v Caxton Publishers, an employee was dismissed for falsifying her CV and incompatibility. Although the misconduct was considered serious, the CCMA still found the dismissal unfair because the employee was not given an opportunity to state her case. The employer was ordered to pay compensation.
In Tharratt v Volume Injection Products, an employee was dismissed for poor performance during probation. The CCMA ruled against the employer because no proper investigation into the poor performance had taken place.
Similarly, in Smith v Patient Focus Africa, the employer extended the employee’s probation period but failed to continue counselling and performance management. The CCMA found the dismissal procedurally unfair and awarded compensation.
These cases clearly show that procedural fairness remains essential, even during probation.
Key Takeaways for Employers
Probation can be an effective tool for assessing new employees, but employers must use it correctly and lawfully.
Remember:
- Probation does not remove an employee’s labour law rights
- Poor performance must be properly managed
- Employees must receive support and guidance
- Dismissal must follow a fair process
- Employees must be allowed to state their case
- Proper records and documentation are essential
Employers who fail to follow fair procedures may face costly CCMA disputes and compensation awards.
Before dismissing an employee on probation, employers should ensure that they have complied with both substantive and procedural fairness requirements under South African labour law.
For questions or advise, please contact the Cofesa national helpline:
(t): 011 679 4373
(c): 082 888 9516
(e): helpline@cofesa.co.za
Disclaimer: The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Readers are advised to always consult with a Labour Law Practitioner before acting on the information. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.