Once the recruitment process is completed, a probation period is often the next step in affirming an appointment. Probation is solely for newly appointed employees. It aims to establish, before signing off and confirming the relevant employee’s appointment, if the prospective appointee’s performance is acceptable. It is also a period during which an appointee can evaluate if their new job is right for them. Thus, a probation period is intended to benefit both the employee and the employer.

Probation Period Rules in South Africa

The definition of probation in labour law is “testing the employee’s work performance.” It’s seen as a legitimate way to assess a chosen candidate’s occupational performance. The probation period clause in South Africa is found in Labour Relations Act 66 of 1995, schedule 8. It has 4 main points and multiple sub-points that unpack the specifications of the act.

The Labour Relations Act 66 of 1995 Code of Good Practice states:

1.

a) Before confirming an appointment, an employee may require a recruit to undergo a probation period.

b) Probation is intended to allow performance evaluation.

c) Multiple and/or rolling probationary periods cannot be used instead of appointing a permanent staff member.

d) The length is predetermined and dependent on the job’s specifications.

e) Performance should be fairly assessed and accompanied by instruction, training, guidance, and counselling.

f) If incompetence is determined, the incumbent should be advised of why and an employer may extend the period or dismiss the person.

g) Extensions are only allowed if they relate directly to the probation purpose.

h) The appointee may be invited to make representations if their performance is deemed incompetent. They are allowed to engage a trade union representative or fellow employee to do this on their behalf.

i) Upon dismissal an employee must be advised of their rights to refer the matter to a relevant council or the Commission.

2. An appointee can only be dismissed if

a) Proper evaluation, instruction, training, guidance, or counselling has been received, and

b) A reasonable period for improvement has been given.

3. Ahead of dismissal an investigation into reasons for unsatisfactory performance should be undertaken as well as consideration of ways to remedy the situation.

4. During the investigative process the employee has a right to state their case as well as be represented by a fellow employee or trade union representative.

While the probationary clause and code of good practice are intended to be straightforward, they can be misinterpreted. This means that it’s often advised that both employer and employee seek legal advice ahead of signing a probation contract. Labour law specialists, such as Britney Theron, are ideally placed to do this.

How Does a Probation Period Work?

A probation period begins on day one of a new appointee’s job. How long a probation period is, depends on the agreed-upon timeframe. Some companies have a standard set timeframe. Others will adjust their timeframe according to various factors. Regardless of the length of a probation timeframe, it needs to be a reasonable amount of time. Specifically, it needs to allow each party to determine the suitability of the appointment. Typically, work probation lasts between one and six months. When entering a probation period an appointee will sign a contract with the company. This contract will be for the duration of their probationary period. If their probation is successful they will then be asked to sign an indefinite period employment contract.

4 Reasons Employers Have Probation Periods

1. On-job testing of a skillset.
2. Measure actual performance and productivity.
3. Assess whether the employee is able to perform as competently as he/she led the employer to believe he/she could.
4. Ensure an appointee can work alongside fellow employees.

Accordingly, a probation period gives an employer a “safety net” to determine the competency and suitability of an appointment. Practically this requires an employer to have a written probationary policy, clearly outlined performance monitoring and evaluation tools and a realistic set of performance standards.

5 Reasons Why Probation Periods Advantage Employees

1. On-job evaluation of work-related information provided in specifications and interview process.
2. Practical assessment of responsibilities and workload of position.
3. Judge if they agree with and fit into company culture.
4. Determine if they get along with their manager and coworkers.
5. Gauge if this is a job they can enjoy and want to do.

Thus, via the probation mechanisms, employees can, without prejudice, determine if a job matches their expectations and career path. Steps can be taken to improve the likelihood that your probation period is successful and meaningful. For example, it is recommended that you maintain a high standard of work performance and willingness to learn from others. You should also build positive rapport and communicate well with colleagues while following all rules and regulations, and demonstrating good work ethics.

Do You Get Paid during a Probation Period?

Appointees who are on probation are still employees of a company. They are subject to the same rights and obligations as fellow employees. Therefore, they must be paid the expected salary for the job. Unless it’s negotiated ahead of their probation period, someone’s salary does not necessarily increase when their indefinite period employment contract is confirmed. Additionally, benefits such as annual and sick leave are accrued from the first day that they start work. This is one reason why extending unsuccessful probationary periods can be costly for a company if, consequently, the appointee is dismissed. It should be noted that some employers withhold an employee’s participation in corporate group schemes until after successful completion of the related probation assessment period. For example, pension, provident and/or medical insurance schemes.

Can an Employee be Dismissed during Probation?

An employee may also be dismissed on grounds other than performance during their probation. All normal procedural and substantive dismissal requirements must be followed if this happens. For example, misconduct, theft, incapacity related to ill health or incapacity and retrenchment are legitimate reasons for dismissal during probation. An employee cannot be dismissed during probation for unfair reasons, such as participating in a legal strike or reasons relating to operational requirements. Should an employee think they have grounds for unfair treatment and dismissal then they are allowed to complain to the CCMA or the Bargaining Council. This must be done within 30 days of dismissal or the date of the outcome of an appeal hearing.

Probation Period Termination Notice

South African law requires companies to give at least one week’s notice of termination of employment to those working a probation period (refer Section 37 of Basic Conditions of Employment Act). Likewise, an appointee is required to give their employer at least one week’s notice.

Managing Probation Periods

In-house management of probation periods is a path many companies opt for. However, with the increasingly complex labour market landscape more companies are now opting for external support for labour processes. Employer of Record (EOR) Services is one mechanism through which Key Recruitment offers to assist with this. Contact our Expert Consultants to discuss how we can help make your labour processes easier and more efficient.