The Employer’s Guide to Probation

The Employment Contract

An employment contract is crucial in managing labour relations as it is the basis of the relationship between the employer and the employee. It defines the terms and conditions as agreed upon between the parties and regulates their relationship. Furthermore, the employment contract describes rules and responsibilities to be adhered to by both the employer and the employee. Despite basic requirements as prescribed by labour legislation and which is not negotiable, the employer can implement additional clauses to eliminate possible future disputes.

 The Probation Period

The Labour Relations Act’s Code of Good Practice makes provision for a probation period. The purpose of a probation period is for the employer to assess if the employee’s performance meets the employer’s required standard. The length of the probation period will depend on the nature of the job, as the more complex the nature of the job is, the longer the period of probation will be. The employer can never just terminate an employee’s services, even if the employee is on a probation period and does not perform according to the required standard. This can lead to an unfair dismissal claim against the employer.

Using a Fixed Term Contract

Employers must take note that using a fixed term contract as a probation period constitutes unfair labour practise. Termination of the contract after completion of the fixed term, may be seen as unfair dismissal. Employers must clearly understand that to disguise what is actually permanent employment in the form of a fixed term contract is illegal.

10 Obligations regarding Probation

The employer has certain legal obligations when placing an employee on probation. We recommend that the employer clearly state all of these obligations in writing in the employee’s employment contract, which must also be explained to the employee.

The employer has the obligation to:

1.• make it clear that the employee is on probation;
2.• clarify the length of the probation period;
3.• set reasonable performance standards;
4 • specify and explain to the employee the performance standards required;
5 • evaluate and monitor the employee’s performance regularly against the set performance standards;
6 • inform the employee of performance shortcomings;
7 • give the employee the opportunity to present more information and explain the situation from his/her point of view;
8 • assist, guide, counsel and train the employee where necessary;
9 • inform the employee of what the possible outcome can be if the required standards are not met; and
10 • follow the correct disciplinary procedure or poor work performance procedure, depending on the circumstances.

Poor Work Performance in the Workplace

Poor work performance is an ever increasing challenge in the workplace and refers to an employee failing to reach and maintain the employer’s work performance standards in terms of quality and quantity. Labour legislation sets clear guidelines of how employers should deal with poor work performance. All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. Should the employee fail in this duty, despite assistance to reach the required standard, he/she is said to be “incapable” and the employer has the right to dismiss the employee. It is vital to note that the employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair.

Skitterblink and Labour Relations

Skitterblink Cleaning Services is Unashamedly Ethical in all our labour dealings. We adhere to all domestic and contract cleaning sector related legislation. We always follow fair labour practices and make sure to look well after our cleaning staff. They are the Dreamers we want to empower!

LWO is one of Skitterblink’s Employers’ Organisations, assisting our Franchisees with labour related aspects and in this way ensuring excellent client services to you our valued client.

You can contact the LWO Employers Organisation at 086 110 1828 for any assistance and/or advice in this regard. You can also send an e-mail to info@lwo.co.za