Employees on probation – a Guide
Item 8(1) of the Code sets out the basic principles in respect of probationary employees:
- An employer may require a newly hired employee to serve a period of probation before the appointment of the employee is confirmed.
- The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.
- Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. The practice of dismissing employees who complete their probation periods, and replacing them with newly hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.
- The period of probation should be determined in advance. It should be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment.
- 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.
- If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with sub items (g) or (h), as the case may be.
- The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
- An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations so made. A trade union representative or fellow employee may make the representations on behalf of the employee.
- If the employer decides to dismiss the employee, or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.
- Any person making a decision about the fairness of a dismissal of an employee for poor work performance during, or on expiry of the probationary period, ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
It must be noted that different jobs may take different lengths of time to determine suitability. The requirement in terms of the length of probation is that of reasonableness.
If the probationary employee is not performing adequately, the evaluation, instruction, training, guidance or counselling referred to in the Code should focus on making it possible for the probationary employee to perform to the satisfaction of the employer. If the performance is not up to standard, the probationary employee should be given an opportunity to improve to the requisite standard.
In sub items (f) to (i) the word “should” is used, so the duty on the employer is less onerous than if the employee had already been confirmed in a permanent position. Item 8(1) (g)-(h) makes it clear that there is a difference between a dismissal during probation and after probation.
The amended Item 8(1) emphasizes that an employee is protected against an unfair dismissal even while serving probation. The justification for these amendments is to make the dismissal of probationary employees easier in order to encourage job creation and to relieve employers of the onerous procedures they had to comply with before this item was amended.
Poor-work-performance dismissals after probation
After the probationary period has expired, most employees will have tenure or permanent status. The procedures that an employer must follow to justify a dismissal for poor work performance after probation are to be found in Item 8(2)-(4), which provides that, after probation, an employee should not be dismissed for unsatisfactory performance unless the employer has
- given the employee appropriate evaluation, instruction, training, guidance or counselling; and,
- after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance. The employer should consider other ways, short of dismissal, to remedy the matter.
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.
Incapacity dismissals are made difficult, then, by the fact that there is considerable overlap between substantive and procedural fairness. They are not always clearly distinguishable.
Setting standards and assessment]
An employer is entitled to set the standards that it requires the employee to meet. The employer has the prerogative to decide whether or not those standards have been met.
In A-B v SA Breweries, an employee engaged as a planning and administrative manager was charged with poor work performance on six occasions and demoted to the position of project controller. The arbitrator held that an employer is entitled to set the standards that it requires the employee to meet. Generally speaking, the court should not intervene unless the standards so set are “grossly unreasonable.”
The commissioner held that the employee had been given a fair opportunity to meet the standards set by the employer and that the demotion was not procedurally unfair. The employer’s performance appraisal and review process had identified the problem areas. The employee had been given an opportunity to improve before the demotion.
The commissioner stressed that, in most cases, senior managers have a duty to appraise their own performance and to rectify poor performance themselves.
The status of the employee may play a role in the performance standards that the employee is expected to reach, and the extent to which the employee will be given an opportunity to improve his performance. The size of the organisation will also be a factor to consider when deciding the degree of the employer’s responsibility towards employees whose performance is sub-standard.
Senior managers may indeed have a duty to assess their own performance standards. The courts have long accepted that senior employees are not always entitled to an opportunity to improve. They have been held to have the ability and duty to monitor their own work performance.
Failure to meet the standards required by regulatory body
A dismissal for incapacity may be justified if the employee does not have the requisite qualifications or has not been accredited by a professional or statutory body.
Assessment and evaluation by employer
The courts have stressed the need for a proper evaluation and assessment of an employee before any action is taken. There must be careful assessment and consultation, and an opportunity to improve.
The Commission for Constellation, Meditation and Aggregation has accepted that less strict standards should be applied to small businesses tasked with evaluating an employee for poor work performance.
It is emphasised that it is through fair process that fair decisions are generally reached. If the dismissal was procedurally unfair, the courts have often been reluctant to reinstate the employee, choosing rather to award the employee compensation.
Dismissal as last resort
No employee may be dismissed for poor work performance without first being made aware of the standards required and then being given an opportunity to improve. The employer is expected to make a reasonable accommodation for an employee and offer the employee alternative employment in some circumstances.