By Stephen Khola, National Labour Relations and HR Director, ECA(SA)
The perception that employees who are on probation have no rights is incorrect and it is advisable for employers to always observe the procedures outlined in this article when dealing with the poor performance of such employees.
The purpose of putting a new employee on probation is to give the employer an opportunity to evaluate an employee’s capacity and suitability to do a certain job. This includes assessing whether or not the employee fits in with organisation’s culture.
I have answered some frequently asked questions about probation:
Q: Is probation compulsory?
A: No. It is ordinarily left to the employer’s discretion to decide whether an employee should be put on probation or not.
Q: Is the probationary period prescribed?
A: No. The employer determines the probationary period, but such period should be determined in advance and should be reasonable in relation to the nature of the job and the time it will take to determine the employee’s suitability for continued employment.
Q: Is a probationary period the same as putting an employee on a fixed term contract?
A: No, a fixed term contract is for work that is temporary in nature, while a probationary period is a predetermined period to assess the employee’s suitability for continued employment.
Q: If I feel that the employee on probation is not performing as required, can I just tell him to go?
A: No. Like any other termination of employment, substantive and procedural fairness are prerequisites.
Q: How do I make sure that the termination of a probationary employee’s services for poor work performance is substantively and procedurally fair?
A: You can do this by doing the following:
- Making clear to the employee that he/she is on probation;
- Indicating the duration of the probationary period;
- Indicating the required standard of performance expected of the employee;
- Monitoring and evaluating the employee’s performance against the set performance standards;
- Informing the employee of any performance shortcomings identified;
- Giving the employee an opportunity to state what he/she thinks is the cause of the non-performance and what he/she thinks should be done to remedy the situation;
- Giving the employee the necessary assistance, guidance, counselling and/or training required to allow the employee to render satisfactory service; and
- Giving the employee a reasonable time to improve;
Q: Should the employee still fail to meet the required performance standard, what should happen?
A: The employer should do the following:
- The employee must be invited to a meeting and advised of his/her right to be represented by a shop steward or fellow-employee.
- Communicate to the employee the aspects in which the employee failed to meet the required standard of performance.
- Afford the employee an opportunity to make representations to the employer regarding the reasons for the poor performance and suggest how the matter could be resolved.
- The employer must consider the employee’s representations and if the employer finds them unacceptable, he/she should indicate so and give reasons why he/she does not accept the employee’s representations.
- The employer may then decide to either terminate the employment relationship or to extend the probationary period.
- The employee should be advised of his/her right to declare a dispute should he/she be dissatisfied with the outcome.
Q: I believe that if I catch a probationary employee stealing from me (misconduct), I can simply ‘fire’ him/her on the spot because he/she is still on probation. Am I correct?
A: No, you are incorrect. The fact that the employee is on probation does not mean that he/she forfeits his/her right to a fair hearing. It is advisable to convene a disciplinary hearing.