Thandiwe [1] resigned from her previous position and moved to an area closer to her new place of employment. Thrilled about her prospects as a newly appointed employee at the local office of a well-established international company, she considered herself privileged to find a promising work amidst the very trying global pandemic. Thandiwe’s employment contract included a six-month probation period during which she could familiarise herself with the nature of the company’s business as well as her duties and to ensure that she obtained the required standard of performance.
Fifteen working days from her commencement date and during a mere fifteen-minute meeting later, Thandiwe was informed by her superior that the employer-employee relationship was not working out for the company, particularly her direct manager, and that her position required too much supervision and management by her superior. After the abrupt termination of her employment, she contacted us for legal advice.
Does the so-called Probation Period afford a convenient justification to employers who have a change of heart regarding a new appointment? The employer may realise that they should rather have cut costs instead of appointing a new staff member or that one of the other candidates might have been a more suitable candidate after all, or that the new employee is not compatible with the supervisor or manager or does not fit the company’s culture. The possibilities are endless, however the question remains whether an employer can use ‘poor work performance’ or ‘incapacity’, or any other permitted reason for dismissal in terms of the Labour Relations Act to justify the dismissal of an employee during his or her probation period.
The Code of Good Practice [2] allows a newly appointed employee to serve a period of probation that is reasonable given the circumstances of the job and whereafter the employment is confirmed.
Probation does not give an employer an excuse to dismiss an employee at free will. A probationary period affords the employer an opportunity to determine the employee’s suitability for the position. During this reasonable and mutually agreed-upon period of time, an employer must ensure that a proper probation policy is drawn up, that suitable and realistic measurements are in place to manage the employee’s performance and that the employee is monitored and evaluated.
The Code of Good Practice [3] gives clear guidelines:
The (probation) period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment.
When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires (but obviously within reason) to render satisfactory service.
The court has found that dismissal will be unfair towards a newly appointed employee where the period for improvement was too short to ascertain whether the employee was a proper fit for the company or a competent placement for the specific position, or the target was unreasonable and therefore incapable of being achieved [4].
While most employees know that they must prove themselves worthy of a position of employment, not all employers are aware of the fact that they also carry an active responsibility towards the employee during the period of probation. This involves consultations with the employee, reasonable training, honest feedback and providing the employee a reasonable time in which to improve. If the employee still, after fair and appropriate measures and procedures were followed by the employer, fails to improve then the employer may terminate the agreement for cause without any further liability or obligation towards the employee.
Failure of an employer to provide proper training and performance management structures during probation may result in an unfair dismissal, where the maximum compensation which could be awarded to the employee is 12 to 24 months of the employee’s remuneration dependent on the circumstances.
Should you require assistance in drafting performance management policies or for advice relating to performance management, contact us on 010 109 1055 or nerine@kernattorneys.co.za.
[1] *Pseudonym
[2] Labour Relations Act 66 of 1995 (LRA) under the ‘Code of Good Practice – Dismissal’, Schedule 8.
[3] Ibid Section 8(1).
[4] Damelin (Pty) Ltd v Solidarity obo Parkinson and Others (JA48/15) [2017] ZALAC 6; (2017) 38 ILJ 872 (LAC); [2017] 7 BLLR 672 (LAC) (10 January 2017).