Ivan Israelstam
Contrary to popular belief, a probation clause is not a license to fire an employee at will.

Despite this fact, employers frequently misuse the probationary status of the employee to get rid of them because:

• The employee has committed an act of misconduct;
• The employer wants to make space for a brother, friend or cousin of the owner;
• The employee “does not fit in” with the company culture; or
• A manager “does not like the employee’s face”.

In fact, the labour-law meaning of “probation” is “testing the employee’s work performance”. This means that the only legitimate purpose of a probationary period is for the employer to assess the suitability of the employee in terms of his or her work performance during this period.
A probationary employee is one who has a conditional employment contract (which can be either written or unwritten). The continuation of this person’s contract is conditional on whether the employee’s work performance during the probationary period shows that he or she either is or is not able to carry out the work properly.
While this describes the purpose of the probationary period, it does not mean that the employer has a free license to fire the employee if the employer believes his/her performance to be unsatisfactory. The employer is allowed to extend the employee’s probation period in order to further assess performance.
This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period. However, before extending the probation period, the employer is required to give the affected employee the opportunity to make representations as regards the proposed extension. The biggest mistake that employers frequently make is that they believe the conditional nature of the probationary employment reduces the probationer’s labour-law rights.

On the contrary, the employer which places an employee on probation has a number of legal obligations, including:

• making it clear that the employee is on probation;
• clarifying the length of the probation period;
• setting reasonable performance standards;
• specifying for and explaining to the employee the performance standards required;
• evaluating and monitoring the employee’s performance against the set performance standards;
• informing the employee of performance shortcomings;
• issuing warnings to the employee where he/she is failing to meet the required standards;
• assisting, guiding, counselling, training the employee where necessary; and before dismissing the probationer, giving him/her an opportunity to state his/her case.

For example, in the case of Fraser v Caxton Publishers (2005, 3 BALR 323) the employee was fired for falsifying her CV and for incompatibility. She took the matter to the CCMA where the arbitrator agreed that she was indeed guilty of the conduct for which she had been dismissed.
The arbitrator also agreed that this misconduct was serious enough to merit dismissal. Despite this, the arbitrator found the dismissal to be unfair because the employer had not given the employee a chance to defend herself against the charges. The employer was therefore ordered to pay the employee compensation equal to four months’ remuneration.
In the case of Tharratt v Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee was dismissed during his probation period for poor performance. As the employer had failed to investigate the cause of the poor performance, the CCMA found the dismissal to be unfair.
The employer was ordered to pay the employee compensation equal to three months’ remuneration. These cases highlight the fact that probationary employees are strongly protected by labour law. At the same time, however, one has to accept that probationary employees often do not work out as well as was hoped.
While the law allows the employer to dismiss such employees who fail, they must follow strict procedures first. Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour-law expertise in designing a probationary policy and procedure. You will also need to call in expert advice in setting realistic performance standards and in designing measures for monitoring and evaluating work performance
The areas of training management in probation law, and the implementation of the probation policy and procedure are also best left to the experts.

• Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 082-852-2973 or [email protected]
• Our appreciation to Ivan and The Star newspaper for permission to publish this article