A probationary employee is one who has a provisional employment contract. That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is capable to carry out the work properly. This however does not mean that the employer has a free licence to fire the employee if he believes their performance to be unsatisfactory.
On the contrary, the employer that places an employee on such a probationary contract has a number of legal obligations towards such employee.
The guideline document in terms of such Probationary contracts is the Code of Good Practice – Dismissal, as contained in Schedule 8 to the Labour Relations Act 66 of 1995. This document states as follows:
(1) “A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee’s suitability for continued employment”.
The Code states further:
“When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. ”
This means that the employee’s performance must be monitored from day one, and any shortcomings in his/her work performance must be addressed, by giving the employee the necessary evaluation, counselling, instruction, training and guidance in order to assist him /her to achieve and maintain the required work performance standard.
In addition the probationary employee must be given an opportunity to state what he/she thinks is the cause of their non-performance, and what they think should be done in order to overcome the problem. The above mentioned is a requirement and therefore it must be done.
The code continues by stating:
(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 counseling; 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.
Therefore at the end of the probationary period, and if the employee has not performed in a satisfactory manner, the employer cannot simply dismiss the employee.
The employer must show that the above procedure of evaluation, counselling, guidance and training has been followed and that the employee has been given a reasonable opportunity to state his/her case and what they think is the cause of the problem, and what measures they suggest should be taken to solve the problem.
Fixed Term Contracts
Other than a probationary contract, a fixed term contract is a contract which runs from one specified date to another specified date. Upon the second date being realized, the contract (and thus the employment relationship) is terminated and the probationary employee joins the ranks of the unemployed.