Probation: A Critical Step Often Forgotten by Employers
What is Probation? Probation is a critical part of confirming continued permanent employment. The probation process is set in The Code of Good Practice – Dismissal in Schedule 8 of the Labour Relations Act which allows for the employer to evaluate an employee’s performance and suitability in a new role while providing the employee with support, guidance or training to attain the objectives of the role.
So why then is probation so important? Firstly, a job interview is a ‘marketing exercise” and so often “what you see is not what you get” when the new employee arrives at the workplace. Probation is a mechanism to measure and correct the issues that may arise at the early stages of employment. Secondly, should all go pear-shaped and the employee cannot deliver the standard required and continues to work and behave in a manner incompatible with the requirements of the organisation the employer has a less onerous “out” of the employment contract than if the employee achieved the requirements at the end of the probation period with no hiccups, or the probation process was overlooked or not executed and the employer picks up problems later. In saying the probation process is less onerous than the incapacity process, does not imply that a fair probationary procedure should not be followed.
Steps to follow for a successful probationary process:
1. A probation clause – have a probation clause drafted in your employment contracts. Take note of the clause and as an employer action the probationary process outlined below. Please remember that a probationary period length needs to be reasonable – i.e., a cleaner would not require 6 months to achieve their job outcomes and a scientist would not take 3 months to settle into their position, the probationary period needs to be justified by the complexity of the role.
2. Have your ducks in a row as an employer, set the outcomes and expectations with new staff early (remember probation can also be used in cases of promotion). A job description and expected outcomes are critical for a new employee to know and understand the expectations of them, have these ready for when a new employee starts. Induct and orientate your new staff member so they understand their role and the business, although they may come highly qualified for the position they will still need to get used to the finer nuances of the company.
3. Set regular probationary reviews, a process where the employer sits with the employee and discusses their attainment of objectives. This is a two-way process the employer provides feedback on the employee’s adjustment and attainment of goals and the employee is required to give feedback and ask for assistance (or offered assistance) where objectives are not being met. The employer is expected to guide, train and coach the employee to attain standards. This is an ongoing process and reviews generally occur once a month, sometimes more frequently if need be.
4. Should the wheels fall off after the employer has tried to assist the employee, the employer can convene a probationary hearing where both parties make representations regarding the employee’s suitability to the role, thereafter the employee may be dismissed if the employer has clearly shown that the employee has not met or is not likely to meet the required standards after the interventions in point 3. Should the issues be minor, but the requirements not met by the end of a probation period, the employer can elect to extend the probation period.
5. It’s important to note that should you employ an employee, and it becomes clear they have misrepresented their qualification or experience and this does not relate to adjusting to the role, but they don’t have the expected baseline to fulfil the role and you have the necessary proof of such misrepresentation or dishonesty the employer can revert to a disciplinary hearing for misconduct.
6. A word of caution, many employers are still in favour of using fixed-term contracts to “try-out” new employees with the promise if they perform well they will be employed permanently – this defeats the object of a fixed-term contract. By nature, the definition of a fixed-term contract is for a fixed -period, examples of the legitimate use of such contracts are maternity leave replacements, illness replacements, a short-term increase in the volume of work, seasonal work, or a fixed-project. Fixed-term contracts used as a probationary mechanism imply further employment, and when the employee performs badly, and their fixed-term contract is not renewed but the employer created an expectation of future employment the employer can land in hot water at the CCMA for creating a reasonable expectation of future employment and therefore be found guilty of effecting an unfair dismissal.
7. The probationary review process needs to be followed objectively and be documented an employer cannot just terminate the employee’s services when a probationary period is over without any reviews or probationary hearing as this will also be deemed an unfair dismissal.
If you have any queries or would like assistance with the probation process, please feel free to contact me.
Call 087 073 6940 or 083 305 6219.
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