Labour Lawyers

Get Legal Guidance from Labour Lawyers on the Issue of Employee Dismissals after a Probation Period

Probation periods are legal, but as our labour lawyers will explain, they cannot be used to hire an employee for a three-month period and then not appoint the employee permanently in order to save costs. A new employee is on probation to be evaluated in terms of work performance. The employer must use the probationary period to determine if the employee will be able to do the tasks required at a standard that is acceptable to the employer.

Should a dispute arise because an employer decides not to appoint the employee permanently, and the reasons for doing so are not valid, then the employee should seek legal guidance from experienced labour lawyers.

The Labour Relations Act specifically addresses the issue of probation in Schedule 8. Probation, as dealt with in Schedule 8, only applies to newly hired workers. To ensure compliance with the Labour Relations Act, it is important for employers who want to apply probation periods to newly hired employees to seek guidance regarding the correct procedure from labour lawyers.

It is imperative to record the period and requirements in the employment contract. Keep in mind that the law does not prescribe a specific period applicable to probation. The period is dependent on the specific job and must be reasonable.

Probation, however, only applies to work performance. The employer can thus not dismiss the employee for misconduct during the period, because the employee has been appointed on a probationary basis. Any issues other than work performance must still be addressed according to the requirements for substantive fairness. The employee still has the same rights as permanently appointed employees.

The above being said, if the employee does not perform as desired, the employer still cannot just dismiss the employee. The reason for dismissal must be fair and correct procedure must be followed, best discussed with our experienced labour lawyers.

The dismissal for poor work performance is only fair if the employee has failed to meet the minimum standard for the job, and has been made aware of the minimum requirements. The employee must have been given the opportunity to meet the minimum requirements. In addition, the dismissal must have been an appropriate sanction for failure to meet the job requirements.

Should the employer at the end of the probation period not want to employ the worker, then it becomes an issue of dismissal. For the dismissal to be fair, the employer must be able to prove that correct disciplinary actions have been taken, and that all requirements of the Labour Relations Act have been met.

The decision must be justified, and the employer must have records to support their decision. Our labour lawyers will also explain that the employer must have taken appropriate alternative steps first to ensure that the employee could meet performance requirements, such as guiding the employee or providing additional training.

Contact our labour lawyers on (011) 234 2125 for legal advice on all aspects of probation and dismissals associated with non-performance.


NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information. All information is relevant to the date of publishing – December 2017.

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