How to end the employment relationship in a fair manner where an employee is on probation
The guide on “How to manage the employment relationship in a fair manner where an employee is on probation”, sets out the meaning and purpose of probation and provides guidelines for employers on how to manage and assess an employees’ suitability for continued employment.
How must an employer deal with an employee who underperforms during probation?
If it becomes clear that the employee is not suitable and will not be able to perform or fit in satisfactorily, the relationship may be terminated before the end of the probationary period. This should not be done too soon, as it may not allow the employee sufficient time to improve or fit in.
Should the employee not improve, the employer must advise the employee of the potential consequences, being that the employee’s employment will be terminated or that the probation period may be extended where after assessing the employee, the employer is of the view that more time could potentially cure the problem.
There must be a valid reason for dismissing an employee who is on probation (substantive fairness)
In terms of item 8 of schedule 8 to the Labour Relations Act 66 of 1995 (LRA), the Code of Good Practice: Dismissal (the Code), the purpose of probation is to evaluate and ensure that a new employee meets the required standards before his/her employment is confirmed.
Although the Code is not specific about the standard of substantive fairness, it does state that the reasons for dismissing a probationary employee for poor performance can “be less compelling than would be the case in dismissals effected after the completion of the probationary period”.
A fair must procedure must be followed before for dismissing an employee who is on probation (procedural fairness)
The Code sets out the procedures an employer should follow:
- The employer must explain to the employee what aspects of his/her performance or competence is not satisfactory and explain why this is so.
- The employer should give the employee reasonable evaluation, instruction, training, guidance or counselling in order to help the employee to improve his or her performance.
- If, after a reasonable period of time, the employee still fails to meet the required levels of performance or competence, the employer may invite the employee to make representations on either whether the probation period should be extended for a reasonable period of time or whether the employee’s services should be terminated.
- The employee is entitled to be assisted or accompanied by a fellow employee. Assistance by a trade union representative (shop steward) only applies if a registered trade union has been granted organisational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist the employee if s/he is a fellow employee.
- The employer should consider the employee’s representations before making a decision to dismiss the employee or to extend the probation period. It is advisable for the employer to reply to the employee in writing, so that there is a record of the representations made and the employer’s response.
- Once the employer has made a decision to dismiss the employee, the employer should advise the employee of his/her rights to refer the matter to the CCMA or a bargaining council if s/he is unhappy with the decision.
- An employee also has the right to challenge the fairness of a decision to extend a period of probation in the form of an alleged unfair labour practice.
- Any person making a decision about the fairness of the reasons for the dismissal of a probationary employee for poor work performance (i.e. at arbitration) ought to accept reasons that may be less compelling (less strict) than would be the case in dismissals for poor work performance effected after the completion of the probationary period.
- After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has: (a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and (b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
- The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
It is not always necessary to wait until the end of the probationary period before dismissing an employee, if it is clear (after appropriate training, guidance, instruction, counselling and evaluation have been given) that the employee will not be able to perform satisfactorily.
However, employers must be cautious not to dismiss the probationer too soon, as it is necessary to give the employee a reasonable opportunity to show that they are able to do the job. For example, the dismissal of a gym membership salesperson after three days of a one-month probationary period has been found to be unfair.
How must an employer deal with an employee who commits a misconduct during probation?
Where an employee commits a misconduct during probation, an employer must manage the situation and may terminate the employment relationship in the same manner as it would in the case of an employee who is not on probation.