A Probation period is a controversial topic that requires an open mind to comprehend fully. South Africa has a very competitive and desperate labour market. The unemployment rate in South Africa rose to 27.6% in the first quarter of 2019 from 27.1% in the previous period. It is the highest jobless rate since quarter 3 2017, as the number of unemployed went up by 62 000 to 6.20 million and employment fell by 237 000 to 16.29 million.
Despite this, there still exists a demand for employment in South Africa. Employing a suitable employee is a daunting and challenging task, and one will never be guaranteed that the employee you have appointed is the true product of the façade put forward during the interview process. New brooms will always sweep clean!
The purpose of the probation period:
Probation is dealt with in terms of the Code of Good Practice – Dismissal, Schedule 8 to the Labour Relations Act.
The probation clause is not a futile clause SEESA includes in their contract of employment. The probationary period is attached to a permanent appointment and the same principles with regards to dismissal are applicable, notwithstanding the probation period.
A probationary employee is newly employed on an employment contract – to evaluate the employee’s work performance during the probationary period to ascertain if he/she is able to perform the work at the required standard.
The probationary status of an employee is only applicable to issues of work performance (competence), it has no relevance to misconduct perpetrated by the employee during probation, nor can it be an easy way out for the employer on the basis of an arbitrary issue concerning the employee. All issues other than work performance must be dealt with in the same way as with any permanent employee. A probationary employee is still entitled to protection by labour law.
Probation does however also not mean that the employer can fire the probationer at will if they are not satisfied with his/her performance. There is a process, the Poor Work Performance Process, to follow and legal requirements to be met. The dismissal must be substantively and procedurally fair.
Item 8 of Schedule 8 clearly stipulates the Poor Work Performance procedure and it will amount to an unfair dismissal if you dismiss an employee during the probation period, based on unsatisfactory performance. It is therefore important to follow the correct process before dismissing an employee, based on unsatisfactory work performance.
The full scope of the poor work performance procedure does not fall within the ambit of this article. Kindly contact your SEESA office for assistance and comprehensive advice on the poor work performance procedure.
So called Probationary Fixed Term Contract
SEESA is inundated with queries from clients on whether the employer can appoint an employee on a fixed term contract for three months, to determine whether the employee can perform.
If the position is of a permanent nature, the appointment will also be a permanent appointment with a probation period. Section 198 B of the Labour Relations Act regulates the use of fixed-term contracts and is applicable to employees that earn less than R205,433.30 per annum.
An employer is permitted to employ an employee on a fixed term contract or successive fixed term contract for up to 3 months. An employee may be employed on a fixed term contract for a longer period if the nature of the work is of limited or definite duration or the employer can demonstrate any other justifiable reason for fixing the term of the contract.
This section sets out a non-exhaustive list of 10 justifiable reasons when you can give an employee a fixed- term of a contract:
- If the employee is replacing another employee who is temporarily absent from work.
- If the employee is engaged on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months.
- If the employee is a student or recent graduate who is employed for the purpose of being trained or to gain experience in order to enter a job or profession.
- If the employee is engaged to work exclusively on a genuine and specific project that has a limited or defined duration.
- If the employee is a non-citizen who has been granted a work permit for a defined period.
- If the employee is engaged to perform seasonal work.
- If the employee is engaged in an official public works scheme or similar public job creation scheme.
- If the employee is engaged in a position that is funded by an external source for a limited period.
- If the employee has reached the normal or agreed retirement age applicable in the employer’s business.
In light of the above, the employee should receive a normal permanent appointment contract, with a probation period included.
By employing an employee you, as the employer is embarking on a new relationship. Relationships can be very successful and others may not. When the employment relationship is at the brink of the abyss, you as the employer are responsible for following the correct process for terminating the relationship.
ABOUT THE AUTHOR
Nadia Brits obtained her BCom Law and LLB degrees from the University of Pretoria in 2007 and 2009 respectively. She completed her articles at the Legal Aid Board and joined the Cape Town SEESA Labour office in March 2014 as a legal advisor.