In today’s competitive job market, many companies are increasingly using probationary periods for new hires. However, there is often confusion and misunderstanding about the legal implications of probation. Some employers mistakenly believe that probation allows them to terminate an employee at will if they are unsatisfied with their performance, without adhering to formal legal obligations. This article highlights key considerations for employers regarding probation and clarifies its purpose.

Understanding the Purpose of Probation
The main objective of a probationary period is to assess an employee’s work performance over a reasonable, mutually agreed-upon timeframe. This allows the employer to evaluate the employee’s suitability for the position before confirming their permanent status.

The Labour Relations Act (LRA) and Probation
Probation is addressed in the Labour Relations Act (LRA) under the ‘Code of Good Practice – Dismissal’, Schedule 8. Key points include:

• Scope of Probation: Probation applies only to work performance or competency. Misconduct during probation must be treated as it would be for a permanent employee.
• Employee Protection: Employees on probation are entitled to full protection under labour laws.
• Dismissal Process: Employers cannot dismiss probationary employees “at will.” Any dismissal must be substantively and procedurally fair, following a specific process.

The Dismissal Process for Poor Work Performance
To dismiss an employee for poor performance during probation, employers must follow these guidelines:

1. Performance Standard: Determine if the employee failed to meet the performance standard.
2. Awareness and Opportunity: Ensure the employee was aware of the required performance standard and given a fair chance to meet it.
3. Appropriate Sanction: Evaluate if dismissal is an appropriate response to not meeting the standard.

Employers must monitor and assess a probationer’s performance continuously. A decision to dismiss at the end of probation is considered a dismissal, requiring adherence to legal standards to avoid claims of unfair dismissal. Detailed records are crucial to justify the decision.

Managing the Probationary Period
Effective management of the probationary period involves:

• Active Supervision: Managers should actively manage the probation period in line with the employment contract.
• Continuous Evaluation: Regular assessment, counselling, and training to address performance issues.
• Employee Engagement: Allowing employees to provide feedback and discuss potential solutions.

Keeping Accurate Records
Employers must ensure that supervisors keep detailed records, including:

• Meeting Minutes: Documenting discussions with the employee, including informal mentoring or training sessions.
• Agreed Solutions: Recording agreed-upon solutions to address performance issues.
• Improvement Deadlines: Setting and documenting reasonable deadlines for performance improvement.
• Outcome Tracking: Monitoring the results of implemented measures to help the employee meet the required standards.

Conclusion
Probationary periods can be valuable for employers but must be used with a clear understanding of the associated legal obligations. The focus should be on determining whether the employee meets the required performance standards by the end of probation. Employers should establish a documented probationary policy, set realistic performance standards, and outline clear evaluation and monitoring measures. By following these guidelines, employers can ensure that the probationary period is both fair and effective, benefiting both the company and the employee.