“I’m on probation, so I can’t even pick my nose the right way!” – Kurt Bursch
Probation periods, and the intention thereof, is one of the most misunderstood concepts in the world of work. Therefore, in this article we unpack the purpose of a probationary period and the fairness of a dismissal during probation period.
In essence, a contract of employment with or without a probationary period, is a contract and permanent in nature. Continuation of the contract of employment, after the period of probation, is conditional on whether the employee’s performance during the probationary period indicates whether they are capable of carrying out their functions at work properly.
Too often employers dismiss employees that are on probation and state that it is within their right to do so, because the employee is still on probation, without following due process!
Unfortunately, many employers have a misconception that the law does not apply to probationary employees. The fact of the matter is – it does.
In fact, if we consider statutory leave provisions, such as annual leave and sick leave, as governed by the Basic Conditions of Employment Act 75 of 1997 (BCEA); and more specifically, the Motor Industry Bargaining Council’s Collective Agreement (MIBCO main agreement), we can see that these provisions apply to all employees from their date of employment, regardless of whether they are on probation or not.
Who can by employed on a probation period?
Item 8(1)(a) of the Code of Good Practice – Dismissal, Schedule 8 to the Labour Relations Act 66 of 1995 (LRA) stipulates that, “An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed.
Therefore, what we can see from this provision is that it is only relevant to newly hired employees, i.e. a probationary period, as a norm, will not apply to employees who transfer from one position to another, or from one dealership/branch to another.
However, probation is not compulsory and it is the employer’s prerogative to decide whether employees should be placed on probation or not.
Why am I employed on a probation period?
The intention and purpose of a probation period is to ascertain whether the individual has the ability to perform the duty to the required standard, to monitor the employee’s performance to determine their compatibility and to determine whether they can perform the functions assigned to them.
Item 8(1)(b) states “The purpose of the probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment;” and item 8(1)(c) states “Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment.”
Can I be on probation for an extended period of time?
In terms of item 8(1)(d) “The period of probation should be determined in advance and be of reasonable duration.”
The norm is that a probation period is three months, which can be extended to six months with good reason, or in the event that it is a managerial or senior position.
Can I be dismissed for not performing up to standard during my probation period?
Yes, you can. However, it is important to note that a normal disciplinary process applies, equally to all employees, whether they are on probation or not.
If an employee is dismissed during their probation period, it should be done in line with the provisions of the LRA, and the dismissal should be procedurally and substantively fair. The requirement therefore is that the Code of Good Practice on dismissal is followed.
Item 8(1)(e) stipulates “During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.”
Employees should receive formal guidance, counselling, assistance and training during their probation period. In the event that their performance is not up to standard, the employer should follow a formal process to make the employee aware of their shortcomings and assist them to improve. It is important for the employer to assess this continuously throughout the probation period and not only at the end of the probation period, when the period is almost over. In the event that the employee’s performance does not improve, the employee should be addressed and given an opportunity to state their case for a chairperson to make a recommendation.
Not appointing a probationary employee permanently is tantamount to a dismissal:
The decision by an employer should be supported by sufficient records and evidence to support and justify the decision. The employer should also be able to show what other alternatives they considered, short of dismissal.
A chairperson will be guided by Schedule 8(9) of the LRA, as follows:
“Any person determining whether a dismissal for poor work performance is unfair should consider-
“(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
(4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.”
Therefore, it is clear from the above, that in the event that you are alleged to be guilty of misconduct, whether on your probationary period or not, your employer is still obliged to follow a formal process to afford you an opportunity to state your case, before an independent and neutral chairperson, in order to make an appropriate recommendation for a sanction.
Applicable case law:
In the case of Fraser vs Caxton Publishers (2005, 3 BALR 323), the employee was fired for falsifying her CV and incompatibility. The CCMA found that the employee was indeed guilty of misconduct and that the offence was of a serious nature, enough so, to justify dismissal, but that the dismissal was unfair due to the fact that the employer merely dismissed the employee without giving her an opportunity to state her case and to defend herself.
In the case of Tharratt vs Volume Injection Products (Pty) Ltd (2005, 6 BALR 652), the employee was dismissed during his probationary period for poor work performance. The CCMA found the dismissal to be unfair because the employer failed to investigate the cause of / reasons for the poor performance.
These cases highlight that employees are protected by law during their probation period.
It is important to note that it is not impossible to be dismissed during your probation period, provided that your employer follows the correct procedures (procedural fairness) and that fair reasons are provided (substantive fairness), then your dismissal may be regarded as fair and reasonable in the circumstances.
If you are in doubt – Remember, MISA is just a phone call away!
Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
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