Probation periods play a vital role in helping Employers assess whether a new Employee is a good fit for the role and the broader workplace. This assessment goes beyond technical capability and extends to workplace conduct, values, and cultural alignment.

The Labour Relations Act (LRA 66 of 1995), through the Code of Good Practice: Dismissal (Schedule 8), recognises probation as a valid and fair mechanism, provided it is implemented correctly. This includes setting the terms of probation upfront and ensuring the period is long enough to make a meaningful evaluation.

Why probation makes good business sense

A structured probation period enables early identification of concerns and provides the Employer with flexibility to act decisively if the Employee is not meeting expectations. Unlike the process required for confirmed Employees, the standard for justifying a dismissal during probation is less onerous.

Schedule 8 confirms that when a probationary Employee is dismissed for poor work performance, the burden of proof required from the Employer is less onerous than in other dismissal scenarios. However, this does not exempt the Employer from following a fair process. Employers must still demonstrate that they acted reasonably and provided appropriate support. Courts have supported this view in case law such as: Mogola v Department of Education and Nyembezi v NHLS, confirming that although the threshold is lower, fairness and due process remain essential.

A proactive approach avoids future issues

Properly managing probation helps avoid difficult conversations and potential disputes later. It sets the tone for performance expectations and workplace culture from the outset. Employers who manage probation with structure and intention are more likely to retain high performers and are better positioned to exit unsuitable hires before performance issues become entrenched.

What makes dismissal during probation less onerous?

One of the key advantages of including a probation process is that a disciplinary hearing is not required when dismissing an Employee for poor work performance during probation. Instead, the Employer may hold a Final Probation Review meeting. This meeting must give the Employee an opportunity to respond to concerns and make representations before a final decision is made.

In instances where Employees are not performing (and where they have surpassed their probation period), underperformance often triggers a complete incapacity process involving months of documented performance reviews, coaching, and performance improvement plans.

Probation, therefore, provides a clear legal window for the Employer to assess performance without committing to a long-term incapacity process and is significantly simpler and faster than the formal incapacity procedures required after an Employee has completed their probation period.

What is the burden of proof during probation?

Although the threshold for dismissal is lower during probation, the Employer must still demonstrate the following:

• Performance Expectations were clearly defined (the “what,” “how,” and “how well”);
• The performance deliverables/expectations were reasonable and achievable within the available time;
• Feedback was provided in writing and concerns were raised promptly;
• Enough time and opportunity were afforded the Employee to improve;
• Support such as coaching, mentoring, or counselling was provided;
• Training was provided (where applicable);
• The consequences of not meeting expectations were explained; and
• A fair final meeting was held where the Employee could make representations.

Practical checklist for managing probation

To ensure an effective and legally sound probation process, Employers should have the following in place:

• A clear and comprehensive probation clause in employment contracts;
• An internal probation policy and step-by-step probation procedure;
• Detailed job descriptions with clear performance expectations;
• A meeting in the first week of a New Hire’s onboarding to communicate standards and requirements;
• Scheduled formal probation review meetings; (at least by week 4 and 8 of the New Hire’s commencement)
• Regular informal check-ins with the Employee;
• Standard templates to guide probation outcomes; and
• Trained line managers who understand their responsibilities.

Conclusion

Probation is an essential mechanism for reducing unfair dismissals relating to New Hires. It allows Employers to assess suitability in a structured and legally supported way before making long-term employment decisions. When expectations are clear and support is provided, the probation process benefits both the Employer and the Employee.

Need assistance?

FvT HR Consulting works closely with Employers to build robust probation processes, including drafting clear Probation policies and procedures and training and supporting line managers. If you need guidance on any aspect of probation, from employment contracts to review templates or poor performance concerns, we are here to help.

Written by Suzanne van Zyl (HR Consultant) and Suzaan de Stadler (HR/Labour Consultant)