The probation period in employment is mainly intended to enable an employer to assess an employee’s competence in doing a certain job. Probation is allowed in terms of law. The period of probation ought to be of a reasonable duration and in no case can it exceed twelve (12) months. Reasonable duration is not defined in the ELRA Code, however, in determining whether a period is reasonable or not, one is to consider factors such as the nature of the job, the standards required and the custom and practice in the sector.
The probationary period can be extended for a further reasonable period after consultation with the employee, only if the employer has not yet been able to properly assess whether the employee is competent for the job or suitable for employment.
It is very important that terms of probation are made known to the employee before commencing employment.
Should the employer be of the view that the employee is not performing up to standard or may not be suitable for the position, then the former is under an obligation to notify the latter of this. The employee ought to be given an opportunity to address these concerns or improve his or her performance. During this process, the employee is entitled to be represented by a fellow employee or union representative.
Probationary Employees’ Contract Termination
The Code of Good Practice Rules describes the termination procedures for employees under probation. Although probation employees cannot sue for unfair termination of their employment, they can sue or file a dispute for unfair labour practice relating to probation in terms of the Code of Good Practice. Whenever an employer does not comply with the rule but terminates probation employees without due regard to the procedures laid down, he is inconsistent with the code and therefore not consistent with the purpose of probation, thus making such conduct constitute unfair labour practice. The employer may terminate the employment of a probationary employee where the employee has been given a reasonable time to improve or correct his behaviour and has failed to do so
Duty of the employer during the probation period of an employee
The main duty of the employer is to monitor and evaluate the employee’s performance daily. An employer is obliged to meet with the employee at regular intervals and discuss the employee’s progress and provide guidance throughout the probation period. Where the employer is concerned about the lack of performance by the employee, he ought to inform the employee of that concern and give the employee an opportunity to improve or an opportunity to respond as stipulated. If there is an opportunity to respond, then the probationary employee must be entitled to be represented in the process by a fellow employee or a union representative.