Labour Compass 2 - Probation - June 2011
In this edition, No 2, I will be addressing the topic of “Probation”. Probation links in closely with the subject of fixed term contracts and confusing the two could be costly. I also answer questions that arose out of the first newsletter. These questions are answered under the heading: Seeking Direction.
The purpose of probation is to determine if an employee is suitable for permanent employment.
Q: When may I employ someone on a probation period?
You may appoint all new employees on a probation period. You may also promote an employee into a higher position subject to a probation period.
Q: What is the purpose of probation?
A probation period used to asses an employee’s suitability for permanent employment. This suitability is dependent on the employee’s ability and competence to perform their duties. The employee’s suitability may also depend on their ability to fit in with their colleagues and the company ethos. This latter aspect must be approached with caution.
Q: How long should the probation period be?
The length of the probation period should be determined by the complexity of the position. A cleaner or general worker may be required to work a probation period of 4 weeks, a filing clerk 6 weeks, a credit controller 3 months or bookkeeper or manager a probation period of 6 months. Labour legislation does not prescribe the length of the probation period but allows employers freedom to select a probation period that is fair and sufficient to assess the employee’s abilities and competence.
Q: May I terminate an employee’s services at the end of their probation period?
As employer you have a duty to assess the employee’s suitability for employment. If an employee is not performing to your standards, you are required by law to evaluate, instruct, train and provide guidance or counselling to the employee regarding their shortcomings.
This should be done in writing and record of such evaluation, training, counselling or guidance should be kept on the employee’s file. The employee should be allowed a reasonable time to show improvement after this.
Should an employee fail to improve despite your attempts you may call the employee into a “probation hearing”. There the employee should give reasons for their ongoing failure to meet your standards and reasons why their services should not be terminated.
Q: Must I wait until the end of the probation period before I terminate an employee’s services?
It is not necessary to wait until the end of the probation period before terminating an employee’s services. You do however need to follow the guidelines set out in the above point and always ensure that you have followed a fair procedure. “Probation dismissals” are viewed less stringently than dismissals for poor performance of permanent employees.
Q: Can’t I simply employ someone on a fixed term contract for three months rather than probation?
Fixed term contracts must never be used as probation periods. This has been dealt with in the last newsletter.
Q: What could a simple probation clause in a contract of employment look like?
“The employee shall serve a probation period of 3 months from the commencement of his/her employment. During this period the company shall assess the employee’s suitability for permanent employment. This shall depend on the employee’s ability and competence to perform his/her duties. If necessary the employer shall evaluate, instruct, train and offer guidance or counselling in order for the employee to render satisfactory performance.
In the event that the employee’s performance is unsatisfactory the employer reserves the right to dismiss the employee after all procedures have been followed. Should the employee successfully complete the probation period, the employee shall be appointed to the permanent staff.”
These are a few pointers dealing with probation and some principles applicable to probation periods. Some of the questions that arose out of the last newsletter have been addressed in the answers above. It is always best to seek proper labour advice before acting. These newsletters are guidelines and should not be used in place of but rather read in conjunction with personal labour advice when dealing with any specific issue.
Q: What are the benefits paid to fixed term contract employees and does he incur any deductions?
Fixed term contract employees are subject to the same legislative requirements as permanent employees and as such should incur deductions for UIF, PAYE (where applicable) and any Bargaining Council levies or contributions payable in terms of that Council.
Q: I have an employee on a fixed term contract of employment. He is giving me endless problems. My fixed term contract states that I may terminate the contract for any reason recognised by law. May I simply end the contract? Or must I follow the usual channels?
You should always follow the correct procedures prior to terminating an employee’s contract of employment for any reason.