Legal Matters - Employment Probation

Managing The Delicate Process Of Termination Within The Probationary Period

By Raine St. Claire

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.

A Guided Process For Probationary Dismissals

Assuming a clear work plan with expected outcomes and measures is established, and discussions about areas of improvement have occurred, the following steps are recommended for terminating an employee during the probation period:

Documentation of Interventions

Ensure a documented record of interventions, including the work plan, discussions, and support or training provided to assist the employee. This establishes a comprehensive record for future reference.

Verbal Communication Meeting

Conduct a meeting with the employee to verbally communicate the reasons for considering dismissal, backed by evidence of underperformance. Encourage the employee to respond and, if possible, have a neutral party present during the meeting.

Always furnish a written explanation for the dismissal, ensuring that as an employer, a comprehensive paper trail is maintained.

Assessment and Decision

Consider the employee’s response, engage in further discussion, and determine whether termination is still deemed appropriate based on the evidence presented.

Written Communication of Termination

Communicate the termination to the employee in writing, outlining the reasons for termination, any prior warnings, or minutes from previous meetings addressing performance issues.

Notice Period

Adhere to labour law requirements, providing at least one week’s written notice of termination for employees on probation.

Documentation for Legal Compliance and Fairness

Always furnish a written explanation for the dismissal, ensuring that as an employer, a comprehensive paper trail is maintained. This documentation serves as a safeguard in case of claims of unfair dismissal at the CCMA (Commission for Conciliation, Mediation, and Arbitration).

Dismissing an employee is always challenging, but approaching it with fairness and respect contributes to a more amicable and dignified process for all parties involved.