Employment probation: Managing the delicate process of termination within the probationary period

By Raine St.Claire

A probation period helps employers assess if an employee is a good fit for a job, enabling informed decisions about ongoing employment. Understanding the legal obligations during dismissals in probation is crucial for both parties.

South African context: Varied probationary durations

In South Africa, probation periods, commonly lasting three months, may vary based on the position and employer. The law emphasises determining a reasonable period, considering the nature of the job. Proper procedures must be followed if employers choose not to extend or continue employment at the probation period's conclusion.

Common misconceptions: Dismissing "At Will"

Some employers mistakenly believe that during the probation period, they have the right to dismiss employees "at will" without adhering to formal regulations. However, legal and fair dismissals require a correct process. Continuous monitoring, support, and feedback during probation ensure fair assessments, with documented measures protecting both parties during or after termination.

Fair dismissal criteria: Labour Relations Act (LRA) guidelines

For fair dismissal due to poor performance, guidelines from the Labour Relations Act (Act 66 of 1995, schedule 8) outline specific criteria:

• Evaluating if the employee failed to meet a performance standard.
• Considering the employee's awareness of the required performance standard.
• Ensuring the employee had a fair opportunity to meet the standard.
• Determining if dismissal was an appropriate sanction for not meeting the required performance standard.
• Understanding and adhering to these guidelines ensures a fair and legally compliant dismissal process.

When all necessary steps, including training and support, have been exhausted without resolution, the dismissal process becomes a consideration. Maintaining respect and dignity in this process is crucial for preserving a positive relationship with the employee.