The Spotlight on Probationary Periods

11 Mar 2019

Probationary Periods will now enjoy a lot more attention than before, due to the amendments to the Employment Relations Act around Trial Periods. Trial Periods will only be enforceable where a company employs 19 staff or less. Businesses employing 20 and more will now have to rely on a probationary period to terminate the employment of an employee that recently started.

An employer may require a newly hired employee to serve a period of probation before the permanent appointment of the employee is confirmed. The purpose of probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment.

However, employers are required to justify the dismissal of probationary employees in much the same way as they are required to do in the case of any other employee, with the possible proviso that the Courts may be disposed, in the case of the dismissal of a probationary employee, to accept reasons slightly less compelling than they would require in the case of employees of longer standing.

The period of probation should be determined in advance and must be of reasonable duration, determined with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment. The permissible period of probation will clearly vary from case to case, and will probably be longest in the case with more skilled work.

During the probationary period, the employee's performance should be assessed and, if necessary, the employee should be given reasonable evaluation, instruction, training, guidance or counselling. If the employer considers the employee's performance below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. The same obligation arises if the employer considers the employee incompetent.
If there is no improvement, the employee's probationary period may be extended further, or the employee may be dismissed. The former option may be chosen only for a reason that relates to the purpose of probation - i.e. to give the employer a further opportunity to assess the employee's work performance and not, for example, as a penalty.
Whether the employer decides to extend the probation period or dismiss the employee, the employee must be invited to make representations, either personally or through a support person and the employer must consider those representations.

It is very important to keep proper records of everything during this entire process. Request the employee to sign off any minutes or send minutes to him/her for review after each step.

Probationary periods need to be clearly outlined in the Employment Agreement. Our Employment Agreement templates already have these clauses in as an alternative to the 90 Day Trial Period.

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