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May employees on probation be dismissed for lesser forms of misconduct?

Putting new employees on probation is an accepted practice endorsed by the Code of Good Practice: Dismissal [clause 8(1)]. According to the Code, the purpose of probation “is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment”. The Code specifically warns against the practice of dismissing employees who have completed their probation periods and replacing them with newly-hired employees. Not only is this not consistent with the purpose of probation, it also constitutes an unfair labour practice.

Clause 8(1) goes on to regulate, in some detail, how employers ought to manage under-performing probationary employees. In a nutshell, in disputes about alleged unfair dismissal for under-performance, employers are given a little more leeway in assessing whether or not a probationer’s performance complies with the required performance standards. It urges chairpersons of hearings and arbitrators “to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.”

Does the same apply to misconduct by an employee during probation? May an employer, in other words, dismiss an employee for lesser forms of misconduct if these occur during probation? While the Code is silent about this, the answer must be no. Had the drafters of the Code intended to allow employers to dismiss for lesser reasons during probation, they would have said so. Secondly, the purpose of probation, as stated above, is evaluating the probationer’s performance, not their conduct. Instances of misconduct during and after probation must, therefore, be dealt with in the same way; i.e. there has to be a substantively fair reason present before a probationer may be dismissed for misconduct and a fair procedure must be followed before the decision to dismiss is taken.

May an employer, however, take a probationer’s conduct into account when assessing the employee’s suitability for appointment on a permanent basis? There is, as far as we could establish, no case law on this subject. The general principles regarding unfair dismissal – i.e. the requirements of substantive and procedural fairness – must therefore be applied. This would mean that, if a probationer commits an act of misconduct that is not sufficiently serious on its own to justify dismissal, it cannot be used as the sole reason for not confirming the employee’s appointment. However, misconduct that does not justify dismissal could most probably form part of a “mix” of factors that an employer could take into account when deciding about the employee’s suitability for permanent appointment; e.g. insufficient compliance with performance standards, combined with coming late, absenteeism, insubordination, etc.

May an employer, instead of appointing someone on probation, appoint him or her on a fixed-term contract and simply not allow the employee to return if the employer is not happy with the employee’s performance or conduct? Many employers have tried to use this device in the past, but the amendments to the LRA – which, amongst other, now provide extensive, stronger protection to temporary employees – have put a stop to this.

The long and the short of it all is that employees on probation must be treated exactly the same as permanent employees when it comes to dismissal, with the exception of dismissal or non-appointment on the basis of poor performance.

Barney Jordaan for Labourwise (Pty) Ltd

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