The importance of probationary clauses - does the shoe fit?
Trying to find the right employees is a notoriously difficult task for any employer as it requires sifting through copious amounts of CV’s, compiling shortlists and making snap judgment decisions on candidates based on a relatively short interaction. Some companies go through extensive recruitment processes where candidates are required to complete take home assessments, personality tests and attend multiple interviews with different levels of management in the hope of selecting the best possible candidate. However, no matter how extensive the recruitment process is, the only way you will truly know whether the successful candidate is the right person for the job is once they are thrust into the role and start performing their duties. This is where probationary clauses in employment contracts become particularly important as probationary clauses afford employers an agreed period within which to evaluate a newly appointed employee’s work performance to determine their suitability for the role before confirming their permanent employment. This article aims to discuss an employer’s obligations during the probationary period, the requirements in effecting a fair dismissal during the probationary period and practices to avoid regarding probationary periods.
As mentioned, the purpose of the probationary period is to give the employer an opportunity to evaluate a newly appointed employee’s work performance to determine whether they can perform the duties for which they have been hired. During this period, the employer will evaluate and monitor the employee’s work performance and should the employer find that the employee is not capable of performing their duties, they may dismiss the employee based on work performance for less compelling reasons than might ordinarily be accepted for a permanent employee. The length of the probationary period should be determined with reference to the nature of the job and the time that the employer estimates it may take for the employee to adapt to the duties within the role. Therefore, the more complex and unique the duties for the role are, the longer the probationary period should be.
An employer should have a pre-determined timetable for the duration of the probationary period where the employee’s work performance is regularly reviewed and where they receive feedback on how they are performing so they can be aware of whether they are meeting expectations. Should an employee’s work performance not be satisfactory, there is an obligation on the employer to provide reasonable instructions, training or guidance to give them an opportunity to improve and meet the expected standard. There is less of an obligation on employers to provide training or guidance to employees in more senior positions who were hired due to their work experience and qualifications, as there is an expectation that they can perform their duties. Should an employee still fall short in their work performance after receiving some guidance and training then the employer may extend the probationary period to give the employee a further opportunity to improve, or they may dismiss the employee for failing to meet the expected standard. Should the employer decide to dismiss the employee, they should ensure that a fair process is followed whereby the employee is informed that despite the employer’s efforts to assist the employee in the performance of their duties, the employee has failed to meet the required standard and there are no other alternatives available to the employer but to dismiss the employee. The employee should then be afforded an opportunity to make representations which should be considered and responded to by the employer and then the employee can be given notice of termination.
Some employers submit newly appointed employees to probationary periods through fixed term contracts. By doing so, they circumvent the employee’s protections against unfair dismissal provided for in the LRA as instead of dismissing the employee for failing to meet the required standard of work performance during the probationary period, they simply let the fixed term contract expire. This could be regarded as a misuse of fixed term contracts and employers could still face claims of unfair dismissal in terms of section 186(1)(b) of the LRA based on the employee’s reasonable expectation of contract renewal or permanency, as was the case of Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others  33 ILJ 1171 (LC). This practice should therefore be avoided, and employers should rather rely on probationary clauses to protect themselves when it comes to newly appointed employees.
Probationary periods provide employers with the opportunity to evaluate and test newly appointed employees work performance and lowers the standard of substantive fairness in effecting dismissals based on work performance, meaning commissioners will be less likely to interfere with the employer’s decision in dismissing an employee for failing to meet the required standard than would be the case with permanent employees. Employers are however still required to follow a fair procedure by allowing the employee an opportunity to improve and make representations before making the final decision to dismiss them.