Termination of employment during Probation period

Question:

Termination of employment during Probation period – irrespective of duration of probation period: May I terminate an employee with 24 hours notice and with what reasons?

Answer:

An employer does not have to wait for a probation period to have run its course before effecting the dismissal of a probationary employee.  It would therefore, in appropriate cases be permissible to effect the dismissal of a probationary employee during the probation period itself.  Ordinarily a probationary employee may be dismissed for incapacity / poor work performance.  If that is indeed the case, then no less than one week’s notice of termination has to be given to the employee.  If, however, the employee has misconducted him / herself, and is found guilty of serious misconduct, summary termination is permissible.  Such dismissal will, however, have nothing to do with the probationary nature of the employment then.

Care should be taken not to be seen to have dismissed a probationary employee too soon.  The purpose of probation is to give an employer the opportunity to evaluate the employee’s performance before confirming the appointment.  The period allowed for such assessment should therefore be proper and fair in the circumstances.

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2 Responses to “Termination of employment during Probation period”

  1. Andrew Says:

    Do you have follow the discplinary procedure (notice and what not) even when the employee is still on probation?

  2. Re: Termination of employment during probation period.

    An employee is usually placed on probation for 2-3 months for the employer to assess the employee’s work performance and the employee’s compatibility with the employer.

    An employer usually dismisses an employee under probation for poor work performance. In terms of Schedule 8 of the Labour Relations Act: Code of Good Practice’s key principle is that employers and employees should treat each other with mutual respect. This means that any dismissal of an employee must be effected through fair procedure. The employer must continually assess the performance of the employee under probation and give the employee reasonable evaluation, instruction, training, guidance and counseling etc in order to allow the employee to render satisfactory service. However, if the employer determines that the employee’s work performance is below standard, the employer should advise the employee of the respects in which the employee is incompetent. The employer may only decide to dismiss the employee after the employee has been invited to make representations and has considered the representations made.

    If an employee under probation commits misconduct, then the employer may dismiss the employee upon calling the employee for a meeting in which the employee under probation is alerted to the misconduct committed by the employee and the employee must be given an opportunity to make representation on why the employee must not be dismissed. The important thing here is for the employer to follow fair procedure.

    If an employer decides to dismiss the employee under probation then the provisions of Section 37 (1) (a) of the Basic Conditions of Employment Act would ordinarily apply.
    S.37 (1) (a) of the Basic Conditions of Employment Act 75 of 1997 provides that if an employee has been employed for less than 6 months then the employer should give the employee a notice period of 1 week before dismissal. If dismissal is for misconduct related reasons the notice of dismissal does not arise.

    Procedural Fairness: Misconduct
    The following requirements for procedural fairness should be met:
    • An employer must inform the employee of allegations in a manner the employee can understand
    • The employee should be allowed reasonable time to prepare a response to the allegations
    • The employee must be given an opportunity to state his/ her case during the proceedings
    • An employee has the right to be assisted by a shop steward or other employee during the proceedings
    • The employer must inform the employee of a decision regarding a disciplinary sanction, preferably in writing- in a manner that the employee can understand
    • The employer must give clear reasons for dismissing the employee
    • The employer must keep records of disciplinary actions taken against the employee, stating the nature of misconduct, disciplinary action taken and the reasons for the disciplinary action

    Regards
    Nompilo

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