31 October 2009

Probation - back to basics

Despite the term being prevalent in the majority of employment contracts nowadays, the legal meaning of probation continues to confuse employers and employees alike. Firstly, newly hired employees are not automatically subject to a probationary period: the parties have to agree on probation and preferably capture it in the employment contract. Secondly, while probationary periods have often been understood as a means of ascertaining the employee's general suitability for the position to which they are appointed, probationary clauses in contracts of employment may only be relied on by an employer in relation to the employee's work performance and not issues pertaining to general misconduct such as attitudinal problems, late coming or poor attendance.

Employers often seek to rely on the existence of a probationary clause, in order to deal effectively with employees who are guilty of misconduct. The message should be clear: the Code of Good Practice annexed to the LRA specifically defines the purpose of a probationary period as affording the employer an opportunity to evaluate the employee's performance before confirming the appointment.

The courts have stated that probationary employees are, in principal, entitled to be treated fairly however such employees cannot lay claim to the same degree of security of tenure as their longer serving counterparts. From a procedural perspective, probationary employees are entitled to assistance to enable them to render satisfactory performance. If an employee is not performing satisfactorily during the probation period, the employer must advise the employee of the aspects in which the employer considers the employee to be failing to meet the required performance standard. In such cases, the employer may either extend the probationary period or dismiss the employee.

An employee can only be dismissed for poor work performance during the probation period if the employee has been given an opportunity to state a case in response to the employee's case and has been given the opportunity to be assisted by a fellow employee or trade union representative in the poor performance investigation.

Procedurally, an employer may not dismiss an employee, either during or upon the expiry of a probationary period, without having provided the employee during the probationary period with the necessary counseling, training, instruction and guidance as may be necessary to enable the employee to perform and meet the standards expected of them in terms of their employment contracts.

Although there still need to be fair reasons to justify the dismissal, such reasons are less compelling in the case of dismissals for poor work performance of employees who are not subject to probation.

Gavin Stansfield,
Director, Employment law

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