| Probationary Period |
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UNDERSTANDING THE BENEFIT OF A PROBATIONARY PERIOD:
Many people that Dalia Lichtenstein at Bagraims Attorney's happen to consult with, do not seem to be aware of the fact that Probation is very much part of our labour legislation, and is extremely beneficial to employers.
Schedule 8 of the Labour Relations Act, makes specific reference to probation and in part reads, • 8 (1)(a) “An employer may require a newly - hired employee to serve a period of probation before the appointment of the employee is confirmed.” confirming the appointment.”
There are additional paragraphs contained in the Act and the reference made above is not complete, however (a) and (b) above clearly highlights out the rights of the employer. During the period an employer can appoint an employee and demand them to achieve standards which standards are required to be fulfilled to the satisfaction of the employer. (Obviously standards need to be reasonable and in accordance with the requirements of the job and capabilities of the employee.)
A probationary period does not have to be extremely long, but is rather to be in line with the nature of the job and the time taken to evaluate the position. For example, when employing a secretary an evaluation can take place over a period of a month, two or three. Whereas employing a qualified accountant, a probationary period of a year may be reasonable to determine the capabilities of the employee at year end.
An employee who fails to achieve the standards will not be entitled to permanent employment and cannot allege that he or she had expectation to permanent employment.
A very important aspect however to the probationary period is that it is to be recoded in writing preferably in a letter of appointment or a contract. Often we encounter “he said/she said” scenario in an arbitration, where proof of probation is impossible. In the event an employer cannot prove probation, probation cannot be applied to the proceedings and the onus in a dismissal case, on the employer, will therefore be far more onerous.
Employer must however be aware of their obligations during such period, when evaluating the employee and in particular the need to be blatant about the employee’s shortcomings. An employer has an obligation to provide guidance, counselling and training to the employee to render satisfactory performance. Failure on the part of the employer to assess an employee during the probationary period and then dismiss them may be seem to be unfair. Employers must be aware though that strict and onerous processes regarding performance counselling is not a prerequisite when dealing with a probationary employee.
Finally, before termination of service, during the probationary period, the employee must be afforded the opportunity to make representations regarding their possible dismissal. Representations in practice means a form of a hearing including the right to be represented by a union or fellow employee, and to address the argument of unsatisfactory performance as alleged by the employer.
A probationary period is a valuable tool but it may not be abused. Utilising fixed term contracts as a probationary period or placing permanent employees on probationary once they have held the position for some time, is unfair in law.
I therefore recommend that set consultations are scheduled at the time of the appointment of the employee and that during these consultations minutes are kept. These simple tasks will alleviate frustration on the part of the employer in the event a hearing to terminate becomes necessary and a subsequent hearing is held at the CCMA.
Employers have a right to implement probation but, they also have an obligation to fairly asses the employee and provide them with guidance but not to the length and breadth of performance counselling as may be necessary during a permanent employment relationship. So. be aware of your rights and use this legislated tool, it can only help. |