It is common to find a probationary period clause in an employment contract. The primary purpose of such a clause is for the employer to monitor the new employee’s performance of tasks over an agreed period so that the employer can determine whether the employee is best suited for the job. During this period, the employment contract is not fully in force and will only come into force once the employee has proven that he/she is able to carry out the tasks set out by the employer.
This clause is not to be abused by the employer and should only put in place in order to monitor performance of the employee. What this means is that on the expiration of the probationary period, the employee can be fired only if it is proven that he/she has not met the standard set by the employer. How long is needed for this determination depends on the type of work the employee is required to do and any other circumstances surrounding the job. Apart from this, the Labour Relations Act, 1995 places a further obligation on the employer to comply with the following before breaking off the relationship with the employee:
Inform the employee in advance that he/she will be placed on probation;
Determine the probation period in advance;
Ensure the probation period is reasonable;
Assess the employee’s performance during the probationary period;
Give reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service;
Inform the employee if he/she determines that the employee's performance is below standard. The employer must explain to the employee the specific aspects in which the employee’s performance fails to meet the required standard.
Unless the employer can show that during the probationary period the employee was given reasonable evaluation, instruction, training, guidance or counselling and that the employee was given an opportunity to state their case, the employer cannot terminate the relationship.
Since it rests upon the employer to show that the above steps have been followed, it is advisable that the employer keeps proper record of what they consider to be training, guidance, counselling etc.
The requirements set out by the Labour Relations Act are not there to frustrate and increase the burden on the employers- it is there to ensure fairness and that at the end of the period, both parties get out what they deserve.
It is important to note that although a probationary contract is one that only becomes permanent once the probationary conditions have been met, the employee still has the same rights as any other employee. The employee still needs to be subjected to fair labour practices and be granted all other benefits that accrue to any other employee.
For further information or assistance with Labour Law, please contact Myers Attorneys on 011 346 2422 or reception@myersattorneys.co.za.