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Hi there, and welcome to the LABOUR PROTECT Spring 2005 newsletter...

Many of us have watched with interest the "goings on" in THE APPRENTICE South Africa.  I guess you have had a few ideas on who should have won, why the recruitment process was flawed and what you would have done if you had been one of the people given the chance to go through the "15 week job interview".  So what does the law say about hiring and firing in this manner...

Before an employer can say, "You are dismissed", he/she must make sure that the law has been applied.  Failure to do so could result in the "candidate" challenging the decision made by the employer.   Here is the basis of the Termination Process during the Probation period:

Probation: Keeping a new job...    >> more

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Non Labour Protect members are also able to get FREE assistance:  The Labour Protect Advice Forum gives you the opportunity to put forward a labour law query to a Labour Law Expert... and at no cost... >> more

It is time to take preventative action and look after your Workplace Rights.  Many employers prefer to lay down the law rather than to obey it.  When confronted, they often would prefer to use all available resources to frustrate a just outcome rather than make good on their error.  To ensure that employees have the best resources at their disposal Labour Protect now offers membership! >> more

For R85.00 per month, subject to our membership rules, members can have access to some of the best labour lawyers in South Africa FREE OF CHARGE.  This includes assistance with matters that go to the CCMA, Labour Court and even the Constitutional Court!  >>  brochure on membership

The Labour Protect website has become an invaluable source of information on Workplace Rights.  It is visited by many local and international advice seekers on various labour law issues.  We are pleased to advise, that for the mean while, the website information is FREE to all those wanting information on South African labour law.  Visit our site at www.labourprotect.co.za

The Labour Protect Advice Forum is extremely popular for those seeking advice.  It gives employees the opportunity to voice their labour problems and have an expert give them some guidance on what path to take.  Have a look and see for yourself >>  Labour Protect Advice Forum.    (Please note the "Terms of Use" policy published on the site...)

>> jobs in South Africa

We have extended our network of participating labour experts into many of the main areas in South Africa.  Labour Protect prides itself in only using the most experienced and capable lawyers on the Labour Protect network.  (As Labour Protect operates largely independently of the any of the lawyer used, if our members are not completely happy with the service provided, we will address the problem with the expert and, if needs be, cease using the services of such experts for future instructions. We take the service of our Current Members very seriously...)

We fully realize that simply providing advice and information cannot substitute the intervention of an experienced labour lawyer in a complicated legal matter.  Labour Protect is not just a virtual business existing in the "vapoursphere" but through our national “bricks and mortar” network of labour lawyers and experts  we provide the opportunity for employees to visit an expert in their time of need.  The network can be accessed through the national telephone number 0860 522687 or 0860 LABOUR.  For our Current Members, you can call this number for FREE assistance in terms of the Labour Protect Membership Rules.                         >> more

For non members facing unfair dismissal, unfair labour practices or unlawful retrenchment, you too can use the services of the lawyers on the network.  (If you are not a member, be sure to discuss the cost of such service to avoid any surprises at a later stage…! The telephone number to call is 0860 522687...)

Newsletter

NEWSLETTER TOPIC:                            SEPTEMBER 2005

PROBATION: KEEPING A NEW JOB

General  

An amendment to the Code of Good Practice : Unfair Dismissal contained in schedule 8 of the LRA regulates the respective rights of an employer and employee in a probationary context. The amendment provides that an employer may require a newly hired employee to serve a period of probation before the appointment of the employee is confirmed.                                                                    

Who can be put on Probation?

Probation is for newly appointed employees only.  

The purpose of probation is to establish whether or not the appointee’s performance is of an acceptable standard before permanently employing the employee.  The amendment confirms that the purpose of probation is to give the employer an opportunity to evaluate an employee's performance before confirming an appointment. It is made clear that probation should not be used for other purposes, for example, to deprive employees of the status of permanent employment.                                           

Period of Probation

Probation periods should be reasonable.  This will depend on the nature of the job, which in turn will determine how long it will take to establish whether the employee is performing satisfactorily or not. As a general guideline, the more complex the nature of the job, the longer the probation period eg only a month may be needed to evaluate the performance of a cleaner, but four months may be appropriate for an accountant. 

Probation periods may be extended, within reason, where the employer is not convinced that the employee is performing to the required standard.

In writing?

It is advisable that the probationary period be stated in writing (eg as part of the employment contract or letter of appointment) and that the company’s expectation during the probation period be communicated clearly and are understood by the employee.  Should the probation be extended, it should once again be done in writing.  

Dismissal for Poor Performance during Probation

Reason less compelling and substantive fairness

Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on the expiry of a probationary period ought to accept reasons for dismissal that may be "less compelling" than would be the case had the dismissal been effected after the completion of the probationary period. This establishes a lower hurdle of substantive fairness that the employer must jump to prove the fair dismissal of a probationer.

Procedures

Dismissal for poor performance during probation:

Schedule 8 of the Code of Good Practice: Dismissal, deals with probation.   

An employer has the right to require a newly hired employee to serve a period of probation before confirmation of permanent appointment.  This period is determined in advance and should be for a reasonable period.

Steps:

1.    The employer must determine if the employee failed to meet the work standard.

2.     If the employee did not meet the standard:

a. did the employee know; or

b. could he/she have been reasonably expected to know the standard.

3.    The employer should give the employee instruction, training, guidance and/or counseling to assist the employee to meet the required standard of work.

4.     This means that he employer should evaluate an employee during the probationary period and should provide regular feedback.

5.     After completing the above, the employer should consider other ways short of dismissal eg extending the probationary period in instances where the employee still does not meet the required standard.

6.     The employer may only decide to dismiss/ extend the probationary period only after the employee has had an opportunity to make representations.  A trade union representative or a fellow employee may assist the employee.

7.     Although it is not necessary to hold a formal enquiry, the employer must still comply with substantive and procedural fairness.

 Note:  It is suggested that employer who decide to dismiss or extend the probation period of an employee, do so in writing.  This should include advising the employee of the right to refer the matter to a council or the CCMA.

A probationary employee cannot be dismissed for reasons that are automatically unfair eg participation in a lawful strike.  The probationary clause cannot be relied upon for dismissing for these reasons.

Probation and Dismissal on Grounds other than Performance

Should it be become necessary to dismiss an employee during the probation period for reasons other than poor performance, the normal procedural and substantive requirements are valid and need to be applied.  This includes dismissal for misconduct, incapacity (ill health/ injury) or retrenchments.  For example, if a probationary employee is accused of theft, a disciplinary hearing must be held.

CCMA Referrals

The procedure to be followed at the CCMA for any reason relating to dismissal of an employee or any unfair labour practice relating to probation will be a con-arb process.

>>  more

The information provided in this newsletter is based on a document available on the CCMA website entitled "Probation".  

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