29 June 2022

Termination of Employment While on Probation

Submitted by SchoemanLaw Inc

By Celesté Snyders 

Introduction  

When you get accepted for a job you have applied for, there is usually a three (3) month probation period attached to it before you become permanent. But what if you get fired before the three (3) month period ends? What recourse do you have?  

The employment contract guides an employment relationship. For example, in the agreement, there should bea clause that stipulates the probationary period, which requires an employee to work for a certain period before being offered permanent employment. During the probationary period, the employer decides if the employee is the perfect fit for the company or whether it is best to let the employee “go”. During the probation period, you are you are required to perform well, display your best skills, and apply your mind to scenarios before an employer considers offering the employee a permanent position..  

Should an employer give you notice and or reasons when they are not going to offer you permanent employment?  

Before the probationary period ends, the employer should have taken steps to correct and assist the employee in improving the employee's performance or have a meeting to inform the employee of what the employer thinks the employee could improve on before the probation period ends and extend the probation period. Should the employee not have done the above, the employee may have reasonable prospects of success in referring an unfair dismissal dispute related to probation to the Commission for Conciliation, Mediation and Arbitration.  

The probationary period may be extended to allow the employee to work on their shortcomings and improve their skills rather than to dismiss the probationary employee. However, the extension period should be in writing, and the employee may or may not accept the extended probation period. The employee might feel that the working relationship has broken down while being employed and that there is no reason to continue working for the employer. Another reason may be that the employee has found other employment   

At the end of the probationary period should the employer decides not to appoint an employee, it amounts to a dismissal. Therefore, the employer must prove that they have taken all the necessary steps in terms of the Labour Relations Act1 to succeed against a claim for unfair dismissal relating to probation. The employer must keep good records to justify not appointing an employee after the probationary period.  

Employers should be aware of the legal obligations and implications of dismissing an employee while on probation. At the end of the probation period, the employee should be able to see that the employer has breached the standard of performance during or by the end of the probation period and not whether the employee's performance has improved.  

Conclusion  

The employer should show good cause that they have taken the necessary steps to improve the quality of work and that the employee is not eligible to be appointed despite the training received. Contact an attorney at SchoemanLaw to help you better understand termination while on probation as well as any other labour law needs. 

Ms Celesté Snyders

SchoemanLaw Inc, Cape Town

www.schoemanlaw.co.za

SchoemanLaw Inc

SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.