NAVIGATING PROBATION WITHEMPLOYEES
- Colette Tanner
- Apr 14
- 6 min read
When an employee commences employment, both employers and employees have certain obligations to fulfil. In order to ensure a productive and mutually beneficial working relationship, it is often necessary to have an assessment period to evaluate performance and compatibility. For an employer to engage a new employee on a probation period, is common practise. Employers can appoint employees on a probation period or a permanent basis To navigate this crucial phase effectively, it is essential for employers to understand their rights and responsibilities. The guidelines for probation and the rights and obligations of both parties are outlined in Schedule 8 of the Labour Relations Act 66 of 1995 (LRA) and the Code of Good Practice: Dismissal. The Code serves as an important guideline for probation and fair dismissals in South Africa, ensuring both procedural and substantive fairness. The guidelines help employers maintain fair disciplinary and dismissal practices while protecting employees from arbitrary terminations.
The Code sets out that:
■ Probation only applies to work performance or competency, and that misconduct during probation is treated in the same way as a permanent employee would be treated for the same condition.
■ Probationary employees are entitled to the same full protection of labour laws as that of permanent employees.
■ Probationary employees may not be dismissed “at will”, and that any dismissals must be substantively and procedurally fair.
Evaluation Period
The purpose of probation is to enable employers to evaluate a new employee’s suitability over a reasonable and mutually agreed period, providing an opportunity for improvement before confirming employment. Moreover, employers should guide and support employees during the probation period to ensure they have the necessary tools and knowledge to succeed in their role. While the probation is an evaluation period, the employee is “employed” and should not be viewed as a “temporary” employee.
The Code does not specify a fixed duration for probationary periods. However, employers are responsible for deciding the length of probation and communicating it clearly to the employee. As there is no predetermined term of probation, the duration should be reasonable and appropriate to the complexity of the job. The length of the probation period is subject to the nature of the job as this determines the length of time it will take to establish the employee’s suitability. It depends on a number of factors such as complexity of the position, prior experience, qualification and operational needs. Another consideration in having a probationary period is to facilitate orientation, which is left for the employer to decide on the most suitable period of time for the employment climatisation process. The employer must apply consistent probation conditions to all new employees in the same or similar positions, unless there is a justifiable reason for differentiation based on qualifications, experience, or skills.
Probation Period
A broad approach to probation should be avoided, for example requiring that all employees serve a six-month probatory period. A more junior repetitive role in an organisation may afford an employer a shorter period of time to assess suitability, while it may take longer to assess a person employed into a more senior strategic role. Moreover, an unreasonably long period of probation may constitute an unfair labour practice.
It is recommended that the probation period be explicit and form part of the employment contract. The expectations of the company must be stated clearly, without ambiguity, and understood by the employee at the commencement of employment. The contract should clearly reflect the duration of probation, as well as the start and end dates.
Performance Evaluation
During the probation period, the employer should provide the employee with the necessary guidance, training and evaluation. Importantly, at the commencement of employment, the employer must provide a comprehensive explanation of the expected standard required of the employee during the probation period as well as inform the employee about the performance evaluation process, including the frequency, what will be required for the assessments, and assessment methods.
As a guideline, the employee should be assessed and feedback provided two to three times over the probation period. Best practice confirms that managers should record probationary discussions. An employee who performs in the role will not necessarily require an assessment as it is not needed. Scheduling an assessment should however be considered as soon as it is clear to the manager that the employee is not fitting in or performing as expected. The purpose of probation is to guide and assist employees in improving their performance, timely feedback on strengths and weaknesses is crucial - avoid leaving the feedback toward the end or at the expiry of the probatory period. If the employer is satisfied with the employee’s abilities after the probation period, the employer can appoint the employee on a permanent basis. The employer may also extend the probationary period proportionately should an employee have the potential to improve, however requires more time to demonstrate satisfactory performance.
Assessment Meetings
Poor performance during the probatory period follows a less formal approach, however this must be a fair process. Scheduling the assessment meetings should be considered as soon as it becomes clear to the manager that the employee is not performing as expected. This meeting is not a formal enquiry and consists of a discussion between the employee and their manager on how the employee is not complying with the job requirements, the identification of the reasons or barriers that exist, preventing the employee from meeting the standard and the remedial steps with a clear review period and timelines.
Where the employer is required to provide training, this should be agreed on with the expected timelines. Further meetings with the employee to evaluate the review period should consist of positive and negative feedback received. Should the employer determine at this point, that the employee’s performance is below standard, the employee should be informed in a final meeting.
Employee Dismissal
An employer is able to dismiss an employee at the end of their probation for not meeting the required performance standard or competency expectation of the role, if the employer is able to confirm the employees work performance incompatibility with the job by confirming that they have:
■ Provided active and ongoing supervision – where managers actively manage the probation period in line with the employee’s employment contract.
■ Provided continuous evaluation and regular feedback – where regular assessment, counselling, and training address performance issues.
■ Encouraged employee engagement – allowing employees to provide feedback on their performance and barriers that may prevent the successful attainment of the standard as well as discuss potential solutions. It is also required that employers ensure that these activities are documented, and managers keep detailed records of discussions and interactions which include:
■ Meeting minutes – documenting discussions with employees, which also include informal monitoring and / or training sessions.
■ Agreeing solutions – recording agreed-upon solutions to addressing performance issues.
■ Defining improvement deadlines – setting and documenting reasonable deadlines for performance improvement.
■ Outcome tracking – monitoring results of implemented measures to help the employee meet the required standard.
Any person determining whether a dismissal for poor work performance is unfair should consider:
■ Whether or not the employee failed to meet a performance standard, and
■ If the employee did not meet a required performance standard whether,
■ The employee was aware, or could reasonably be expected to have been aware of the required performance standard, and
■ Dismissal was an appropriate sanction for not meeting the required performance standard
Extending Probation
An employer may extend the period of probation; however, such extensions should not be implemented without suitable reason and should also not occur without formal discussion and agreement with the employee. The extension of the probation must be appropriate, and the period of extension should not be longer than necessary to achieve its purpose. Such extension at the expiry of the probation in the absence of consultation with the employee should be avoided.
Probation periods play a significant role in the employment relationship. They offer a trial period for both employers and employees to assess the suitability of the job and the working environment. Probation periods should be approached with fairness, transparency, and adherence to the principles of labour law. Open communication, clear expectations, and regular feedback are essential for a successful probationary period that benefits both parties involved.
For more information please contact Colette Tanner, T: +27 (0)31 767 0625 E: colette@drg.co.za W: www.drg.co.za
