Articles

Probation must be done reasonably

Sowetan 7 July 2009
By Lavery Modise & Lebogang Kutumela

Very often people are employed on probation for an agreed period of time subject to their employment being confirmed or discontinued due to unsatisfactory performance. This is regulated by item 8 of schedule 8 of the Labour Relations Act 66 of 1995.

The purpose of probation is to afford employers the opportunity to evaluate an employee's performance before confirming appointment. The probationary period should be determined in advance and be of a reasonable duration. In order to determine the reasonableness of the probationary period, the nature of the job and the time it would take to determine the employee's suitability for continued employment has to be taken into account.

In response to the prevalent abuse of probationers by employers, item 8 provides that probation should not be used for purposes not contemplated by the code to deprive employees of the status of permanent employment.

The code contemplates a situation when probationers may be unfairly dismissed at the conclusion of the probationary period and replaced with newly hired employees.

To achieve the purpose of probation, employers are required to assess the employee's performance and to give him a reasonable evaluation, instruction, training, guidance or counselling in order to afford him the opportunity to render satisfactory performance.

After having assessed the employee, if the employer is not satisfied, the employer must advise the employee of its concern. At the conclusion of the probation period, the employer may extend the probationary period to enable the employee to improve his performance or dismiss him.

The probationary period may, however, only be extended for a reason that relates to the purpose of probation and should not be disproportionate to the legitimate purpose that the employer seeks to achieve.

Before the extension or dismissal, the employee must be invited to make representations for consideration by the employer. In making the representations, the employee may be represented by a trade union representative or a fellow employee. Failure to afford the employee the opportunity to make representations will result in the dismissal being declared unfair.

In summarising the procedure to be adopted by an employer prior to the dismissal of a probationer, the Labour Appeal Court held in the case of Sactwu v Mediterranean Wollen Mills (Pty) Ltd 1995 3 BLLR 24 (LAC) that an employer who does not want to confirm a probationary employee's post must show that the employee was: given the opportunity to improve; made aware that his work performance is unacceptable; counselled and consulted if he is not able to handle the work; and treated sympathetically and with patience.

The court went further to state that only after these factors have been complied with and the employee still fails to perform satisfactorily, can his employment be terminated.

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