Probation Period in South Africa: Can Employers Dismiss Without Consequence?

Starting a new job is meant to be exciting, not short-lived. Yet for many South Africans, employment during a probation period ends abruptly, sometimes with little warning or reason.

Is this legal?

At Kern, Armstrong & Associates, we regularly advise both employers and employees on their rights and obligations during probation. Here's what South African law requires in 2025.

What Is a Probation Period and What Does It Actually Mean?

A probation period is a temporary phase of employment, usually ranging from 3 to 6 months designed to assess whether a new employee is suited to the role. While it may feel like a trial run, probation is not a free pass to dismiss at will.

According to the Code of Good Practice: Dismissal under the Labour Relations Act (LRA): “A probationary period does not affect the employee’s protection against unfair dismissal.”

The probation clause must therefore be reasonable in length, agreed to in writing, and implemented with clear expectations and support.

Is Dismissal During Probation Automatically Fair?

No. South African courts have made it clear: dismissals during probation must still be procedurally and substantively fair. Employers cannot simply claim poor performance without following a fair process. As confirmed in Damelin (Pty) Ltd v Solidarity obo Parkinson and Others, a short adjustment period or vague dissatisfaction is not enough to justify termination.

The Employer’s Legal Duties During Probation

An employer must:

• Define clear performance standards upfront

• Monitor and evaluate the employee’s work

• Provide regular feedback, guidance, or training where necessary

• Allow reasonable time for improvement

• Engage in consultation before considering dismissal

Failure to meet these duties may result in a finding of unfair dismissal, even if the employee is still within their probation period.

Common Employer Mistakes

Here are examples where dismissal during probation may be unlawful:

• Dismissing without giving the employee a chance to improve

• Using probation as a pretext for poor hiring decisions or personality clashes

• Failing to document performance discussions or improvement plans

• Not allowing sufficient time or support to assess the employee’s capability

What Happens If the Employer Gets It Wrong?

If dismissal is found to be procedurally or substantively unfair, the employee may be awarded up to 12 months’ remuneration as compensation. In some cases (e.g. discriminatory or automatically unfair dismissal), this may rise to 24 months’ remuneration.

Best Practices for Employers in 2025

To reduce risk and support new hires fairly, employers should:

• Draft a clear probation clause in employment contracts

• Implement a probation performance policy

• Keep written records of evaluations, discussions, and training

• Involve HR or an independent party in the review process

• Ensure that any dismissal meets the requirements of fairness under the LRA

Final Thought

Probation is not a loophole. It’s a structured period of assessment and support, not a one-sided contract escape.

Employers who manage probation correctly reduce legal risk and retain better talent. Employees who understand their rights are more empowered to thrive.

Whether you're an HR manager, business owner, or recently dismissed employee, expert legal guidance makes all the difference.

Need advice or policy drafting support?

Contact Kern, Armstrong & Associates today

info@kernattorneys.co.za | 010 109 1055