Probation: Is the person on probation an employee or a trainee?

After reading this topic, you would know about:

• Probation and why you should develop a clear policy on it as the employer • The dangers of not having a well-defined probation program • What the law says about probation • How to deal with employees who are on probation but who fail to perform during the probation period

It is very interesting that among the many cases at the CCMA and Bargaining Council referred by the employees are the disputes brought by employees on probation. This is a problem.

It is a nightmare to have an employee who has just been employed and who is on probation challenging the company he or she has joined less than 6 months ago. This shows that there is somehow a misalignment of the company expectations from its new employees and the employees’ capacity to grasp what is expected from them. This then result in a conflict which leads to a CCMA or Bargaining Council dispute referral by the employees on probation.

Let start at the beginning of the process of recruiting new employees. The new employees would be placed on a probationary program. This make them to be more like students or interns as they are being trained so to speak on the new workplace culture.

The training is not an ordinary training like at university or college. It is an on-the-job training. It is real and the quick grasping is crucial.

The employees on probation would normally start slowly as they mostly come from a different environment or workplace culture but towards the end of the probation period be it 3 or 6 months, they would be on the ball, like all other employees who have been there for a year or more. However not all the employees would be like that. Life does not always work that way.

There would be one or two employees who would slack for whatever reason. The question now is what do you do as the supervisor?

One supervisor can initiate a process that would lead to the dismissal of the employee. This leads to another question which is, is that legally acceptable in terms of our labour laws? These questions or scenarios have played themselves in our labour courts.

Because every company’s success is measured by its high productivity level, the supervisor of an employee who is not pulling weight would get frustrated and the contract of the employee who is slacking would be terminated and the employee would rush to CCMA or Bargaining Council.

The process of terminating the contract of the employee on probation would be scrutinised and a ruling would be made which might come as a surprise to the company. Maybe it can be more than a surprise, it can be an embarrassment. In the case of Tharratt vs. Volume Injection Products (Pty) Ltd (2005, 6 BALR 652) the employee on probation was dismissed during his probation period for poor performance.

In the ruling it was stated that the employer had failed to investigate the cause of the poor performance the CCMA found the dismissal to be unfair. The employer was ordered to pay the employee compensation equal to three months’ remuneration.

The employers must tread carefully when dealing with employees on probation. If the employee is not measuring according to the expectation of the employer, dismissal should be the last resort. The employer must first find out why the employee is not performing according to the expectation. The employer can first do the following in order to address the situation:

1) Put in place a performance measuring program for employees on probation;

2) Use the performance measuring program on weekly basis and make sure that the employee on probation understands what his or her input is compared to what is expected from him or her;

3) Give the employee a reasonable space to adjust.

4) If the employee is unable to adjust, extend the probation period. There is no law which prohibits the employer from extending the probation period for as long as there is a justifiable reason to do so. The supervisor must sit the employee down and explain why the probation must be extended for the benefit of both the employer and the employee. The meeting must be recorded.

If the above fails, the employer can then consider initiating a poor performance hearing (not a disciplinary hearing).

We would strongly recommend that probation should be in the company policies. It must be clear on what the employer is expecting from the employee during the probation period.

Probation is a serious issue and that is why it is in our labour laws. The Labour Relations Act’s Code of Good Practice¹ states as follows about probation:

Probation. —

(1) (a) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed.

(b) The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.

(c) Probation should not be used for purposes not contemplated by this Code to deprive employees of the status of permanent employment. For example, a practice of dismissing employees who complete their probation periods and replacing them with newly-hired employees, is not consistent with the purpose of probation and constitutes an unfair labour practice.

(d) The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment.

(e) During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.

(f) If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent. The employer may either extend the probationary period or dismiss the employee after complying with subitems (g) or (h), as the case may be.

(g) The period of probation may only be extended for a reason that relates to the purpose of probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.

(h) An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee.

(i) If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.

( j) Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.

(2) 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.

(3) 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.

(4) 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.

¹ Labour Relations Act 66 of 1995, schedule 8 : Code of Good Practice

The employer should not be caught of guard when it comes to dispute brought by the employees at the CCMA or Bargaining Council. One cannot prevent an employee from referring a dispute to the CCMA or Bargaining Council but one can be able to avoid an embarrassing outcome of the CCMA or Bargaining Council dispute.