An employer may require a newly hired employee to serve a period of probation before the appointment is made permanent. The purpose of probation is to allow the employer an opportunity to evaluate the employee’s performance before confirming the appointment as per The Code of Good Practice Item 9 (1) (b) of Schedule 8 of the LRA

Should the employer decide that the new employee’s performance was unsatisfactory, can the employer simply terminate the employee after the probation period, or alternatively unilaterally extend the probationary period? No, this is not consistent with the purpose of probation and may constitute an unfair dismissal or unfair labour practice. Probation should also not be used to deprive the employee of the status of permanent employment.

After probation, an employee should not be dismissed for unsatisfactory performance unless the

employer has:

• given the employee appropriate evaluation, instruction, training, guidance or counselling; and allow a reasonable period of time for improvement.
• If 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.
• In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee. Then termination can be justified

In the matter of Ziningi Shoba v Commission for Conciliation, Mediation And Arbitration – (Case No: Jr 1047/19) (LC)

An employee was employed on a six-month probationary period. Weeks before the conclusion of her probationary period, issues of poor performance continued. Instead of terminating her employment, a decision was reached by Telkom management to extend her probationary period in order for her to improve her performance. This was after a performance assessment which indicated that the required achievement was not met. The employer took a view that the employee was not achieving the required performance targets. Various attempts were made to meet with the employee to no avail and each time she was sick and became unavailable. She was later informed that her employment shall end since the employer will not be confirming the successful completion of her probationary period.

Aggrieved by the dismissal, the employee referred a dispute to the CCMA. The dispute was arbitrated, and the employee was not successful in her claims. She referred the outcome of arbitration to the Labour Court for review. The Court found that the Arbitrator correctly found that the employee had failed to discharge the onus of proving that the employer committed an unfair labour practice.  The extension of the probationary period was, in fact, a decision beneficial to the employee.  The Court held that the dismissal was for a fair reason substantively, as the employee had missed the targets and deadlines which was common cause. With regard to procedure, the Court held that the employee was given ample opportunity to participate in a process leading to her dismissal. The Court thus concluded that the employer had complied, and the dismissal was therefore substantively and procedurally fair. The arbitration was upheld, and the case was dismissed.

It is also important to note that with regards to personnel in senior positions where there is a general expectation that the employee, by virtue of his experience and seniority, is aware of what the performance requirements and standards are, that this onerous process in terms of the Code of Good Practice is not always required as demonstrated in the matter Somoyo v Ross Poultry Breeders (Pty) Ltd. 

In this matter the employee was a manager of a chicken hatchery who was dismissed for failure to vaccinate chickens against disease, the court held that although the employer had not adequately complied with the requirements of counselling and warnings which would generally be applicable to “ordinary” employees, Mr. Somoyo was not an ordinary employee. He was a manager, he was aware of the potential consequences for the company of failing to vaccinate and he failed to provide and expect-able explanation for his omission.  His dismissal was fair

In this instance the court placed a premium on seniority and experience as factors to consider whether an employee’s performance is lacking.

The more senior and highly paid the employee, the higher standard of overall work that can be expected. Employers need to take note of these guiding principles when dealing with work performance issues and specifically probation in the workplace.