GENERAL
Probation is for newly appointed employees only. The purpose of
probation is to establish whether or not the appointee’s performance
is of an acceptable standard before permanently employing the
employee.
Probation periods should be reasonable. This will depend on the
nature of the job, which in turn will determine how long it will take to
establish whether the employee is performing satisfactorily or not.
As a general guideline, the more complex the nature of the job, the
longer the probation period e.g. only a month may be needed to
evaluate the performance of a cleaner, but four months may be
appropriate for an accountant.
Probation periods may be extended, within reason, where the
employer is not convinced that the employee is performing to the
required standard.
It is advisable that the probationary period be stated in writing (e.g.
as part of the employment contract or letter of appointment) and that
the company’s expectations during the probationary period be
communicated clearly and are understood by the employee. Should
the probation be extended, it should once again be done in writing.
PROBATION AND DISMISSAL ON GROUNDS OTHER THAN
PERFORMANCE
Should it become necessary to dismiss an employee during the
probation period for a reason other than poor performance, the
normal procedural and substantive requirements are valid and need
to be applied. Examples of such dismissals would include
misconduct, incapacity due to ill health / injury or retrenchment.
Therefore, should an employee on probation be accused of theft, a
disciplinary hearing should be held. Where retrenchment has
become necessary, a consultation process should be followed prior
to the retrenchment.
The reason why probation does not have an impact on poor
performance dismissals is due to the fact that probation is aimed at
sorting out performance issues before a person is permanently
employed.
DISMISSAL FOR POOR PERFORMANCE DURING PROBATION
An employer should give an employee on probation, evaluation,
instruction, training, guidance or counselling as required by him/her
in order to render satisfactory work.
Schedule 8 of the Code of Good Practice: Dismissal, deals with
probation. An employer has the right to require a newly hired
employee to serve a period of probation before confirmation of the
employee’s appointment, which period should be determined in
advance and should be of a reasonable duration.
During the probation, performance of the employee should be
assessed. If the employee fails to meet the required standards or is
incompatible, the employee should be advised of these
shortcomings.
PROCEDURE
The employer should give an employee evaluation, instruction,
training, guidance or counselling as required for the employee to
render satisfactory work.
This means that the employer should evaluate an employee during
the probationary period and should provide regular feedback.
An employer may dismiss an employee or extend the probationary
period after the employee is invited to make representations
Only after considering those representations may the employee be
dismissed or the probation period be extended.
There must be procedural fairness in dealing with this dismissal
There must also be substantive fairness – in that there must be fair
reasons as to why the employee is dismissed or the period
extended.
It is not necessary to hold a formal enquiry
The rules of natural justice will apply (e.g. when making
representations the employee may be assisted by a fellow
employee)
It should be noted though that the employer does not require to
have as compelling reasons for the dismissal as would be the case
with an employee who is not on probation (i.e. with employees who
are permanently employed)
The Code of Good Practice for Poor Performance: Incapacity, does
not apply to probationary employees.
A probationary employee cannot be dismissed for reasons that are
automatically unfair e.g. participation in a lawful strike. A
probationary clause cannot be relied upon for dismissing a
probationary employee on operational requirements.
RELEVANT LEGISLATION
Labour Relations Act, Schedule 8: Code of Good Practice
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Apparently I don't fit their ideal candidate etc etc etc etc... My big question is that my contract states that I have a 6 month probation period and mentions nothing about the probation period being shortened due to being an unsuitable employee, only that the probation period can be extended if necessary. AND they are only going to pay me up till mid October. Surely if they were to go against the contract they would have to pay me for the full remainder of the probation period i.e. end of December?
