Many employers assume probation is a “trial period” where employment can be terminated with minimal procedure. That assumption is incorrect.

During probation, dismissal must still meet the basic fairness standards set out in Schedule 8 of the Labour Relations Act 66 of 1995 (LRA). Probation provides flexibility and allows for a less formal process, but it does not remove the obligation to act fairly.

The Facts

In Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371, the employee was dismissed during probation for repeated late coming, running personal errands during working hours, and failing to use a GPS as instructed.

Although the Commissioner found the employee guilty of misconduct, the dismissal was ultimately found to be unfair.

The employer had:

• Allowed the misconduct to continue over time.
• Provided only verbal counselling.
• Failed to issue clear warnings.
• Not indicated that dismissal could follow.

The employer relied heavily on the fact that the employee was still on probation.

Legal Framework

Schedule 8 (Code of Good Practice: Dismissal) recognises probation as a legitimate evaluation period. However, it requires a minimum standard of fairness.

Before dismissing for poor performance during probation, an employer should:

• Clearly communicate performance standards.
• Identify areas of concern.
• Provide guidance, instruction, or counselling.
• Allow reasonable time for improvement.
• Give the employee an opportunity to respond.

The process may be less formal than for confirmed employees, but progressive engagement remains essential.

Case Law

The Labour Court of South Africa confirmed that even where an employee is on probation, dismissal must still be substantively fair.

The Court rejected the idea that probation acts as a contractual escape clause. It held that an employee cannot simply be dismissed at the end of the probation period for misconduct if progressive discipline was not followed.

Probation is a structured assessment process, not a mechanism to bypass fairness.

Application to Employers

This judgment reinforces several important principles:

• The threshold for dismissal during probation may be lower, but fairness still applies.
• Misconduct during probation must be addressed progressively.
• Employers cannot allow ongoing issues to accumulate and then dismiss at the end of the probation term.
• The expiry of probation is not, on its own, a lawful reason for termination.

If an employer fails to guide, assess, and clearly communicate expectations, it weakens its position in any subsequent dispute.

Practical Steps for Employers

1. Get the basics right from the start

Ensure probation terms are in writing, reasonable in duration, and clearly explained.

2. Treat probation as a structured performance process

Schedule review meetings and provide guidance and support.

3. Document engagement

Keep written records of meetings and discussions.

4. Communicate consequences clearly

If improvement does not occur, the employee must know dismissal is a possible outcome.

5. Avoid automatic end-of-probation terminations

Expiry of the probation period alone does not justify dismissal.

6. Be reasonable and allow improvement

Probation is intended for coaching and assessment — not rushed termination.

Key Takeaways / Conclusion

Probation is not a procedural shortcut.

It is the employer’s opportunity to assess suitability in a structured and fair manner. While the process may be less formal, it must still reflect progressive engagement and clear communication. Employers who treat probation as a dismissal safety net risk findings of unfair dismissal.

Fairness does not begin after probation. It applies from day one.

Written by Renette Badenhorst, Dispute Resolution Official (CEO SA)