Probation dismissal checker

This checker tests a dismissal during or at the end of probation against the Code of Good Practice: Dismissal, 2025, which replaced Schedule 8 of the Labour Relations Act on 4 September 2025. The new Code made it easier to dismiss a probationer than before. It did not make it easy, and it did not remove the need for a reason or a fair process. This tool asks about the things the Code still requires and tells you which of them appear to be missing.

It is for employees who have been dismissed or warned during probation and want to know whether they have a case, and for employers who want to end a probation lawfully rather than find out at the CCMA that they did not. It is about the procedural position. It does not predict the outcome of an arbitration, and it does not pause the 30-day period for referring a dismissal dispute, which runs from the date of dismissal regardless.

What this calculator works out and who it is for

You enter the agreed probation period, how long you have worked there, the reason given for the dismissal, and four yes-or-no answers: whether you were told what standard was expected of you, whether you were given a reasonable opportunity to meet it with guidance where needed, whether you were allowed to state your case before the decision, and whether the probation has been extended.

The checker works out whether you are still within probation, lists the Code's requirements that appear met and those that appear missing, and gives a headline. Where the reason is operational, it tells you that a retrenchment is a retrenchment whatever stage of employment you are at. Where no reason was given, it tells you that probation lowers the bar for the reason but does not remove it. Where probation has ended, it tells you the lower standard no longer applies and the ordinary rules for poor performance do.

Nothing here is specific to probation in the sense of a separate legal category. A probationer is an employee from the first day, with the full protection against unfair dismissal in section 185 of the Labour Relations Act. What probation changes is the standard the Code applies when assessing whether a dismissal for poor performance or unsuitability was fair.

How the calculation works

The checker first decides whether you are within probation: there must be an agreed period, and your service must not exceed it. If no probation was agreed, or you have served beyond it, the lower standard falls away and the checker says so.

It then sorts your three process answers into requirements met and requirements missing. The Code requires that a probationer be given the standards expected, a reasonable opportunity to meet them with evaluation, instruction, training, guidance or counselling where appropriate, and an opportunity to state their case before a decision to dismiss. Each is a separate requirement, and the checker counts how many appear to be missing.

The reason you select routes the result. Operational requirements means a retrenchment, with the section 189 consultation process and severance pay, and the checker says so in the headline. No reason means an unfair dismissal at any stage. Performance, conduct and suitability are the reasons the Code's probation provisions actually address, and for those the checker reports the procedural position: within probation with the requirements met, within probation with one or more missing, or outside probation with the ordinary standard applying.

If the probation has been extended, the checker adds a warning. The Code says probation should not be used to deprive employees of the status of permanent employment, and repeated or open-ended extensions are the usual way that happens. Good practice is to hear the employee before extending it and to record why more time is needed.

The law behind the numbers

Every employee has the right not to be unfairly dismissed under section 185 of the Labour Relations Act 66 of 1995, from the first day of employment. Section 188 makes a dismissal unfair unless the employer proves a fair reason related to conduct, capacity or operational requirements and a fair procedure, and requires anyone deciding the question to take into account the relevant code of good practice. From 1995 that code was Schedule 8 to the Act. On 4 September 2025 the Minister of Employment and Labour replaced it with the Code of Good Practice: Dismissal, 2025, published under section 203, and it is that Code the CCMA and the Labour Court now apply.

The 2025 Code says that an employer may require a newly hired employee to serve a period of probation before confirming the appointment, that the purpose of probation is to give the employer an opportunity to evaluate the employee's performance and suitability for the position before confirming it, and that the period should be reasonable having regard to the nature of the job and the time it takes to determine suitability. It sets no maximum. It says that probation may not be used for purposes not contemplated by the Code, in particular to deny employees the status of permanent employment.

The important change from Schedule 8 is in two places. First, the Code now speaks of suitability as well as performance. Suitability can include an employee's compatibility with the role and the workplace, which Schedule 8 did not expressly allow as a ground. Second, the Code says that less compelling reasons may justify the fairness of a dismissal of an employee during or on the expiry of probation where the dismissal relates to the employee's conduct or capacity. Under Schedule 8 the same phrase applied only to poor performance; it now extends to misconduct and to suitability as well.

What the Code keeps is the process. During probation the employer should give the employee reasonable evaluation, instruction, training, guidance or counselling to allow the employee to render a satisfactory service. The employee must be told the standards expected. Before a decision to dismiss or to extend probation, the employee should be given an opportunity to make representations, and may be assisted by a fellow employee or a trade union representative. A probationer dismissed without being told what was expected, without a chance to meet it, and without being heard has been dismissed procedurally unfairly, however low the bar for the reason.

Three things do not change at all during probation. A dismissal for operational requirements is a retrenchment under section 189, with its consultation process and severance pay, whatever the employee's length of service. A dismissal for any of the automatically unfair reasons in section 187, such as pregnancy, union membership or having made a protected disclosure, is automatically unfair. And the probationer has the same 30 days from the date of dismissal to refer the dispute to the CCMA or a bargaining council.

Worked example

Zanele starts as a bookkeeper on a six-month probation. In month four her manager tells her she is "not working out" and hands her a letter ending her employment at the end of the week. She was never given written targets, her only feedback was an offhand comment in month two that she was slow, and she was not asked for her side before the letter was handed over.

The checker places her within probation: six months agreed, four served. The reason is performance. None of the three process requirements is met. The headline reads that she is within probation but three of the Code's requirements appear missing, and the warning explains that even during probation the Code requires that the employee be told what is expected, be given a reasonable opportunity to meet it, and be heard before the decision, and that on her answers none of that was done. That points to procedural unfairness, which an arbitrator can compensate even where the employer could have justified the dismissal with a proper process.

Change the facts. Suppose Zanele had been given a written list of month-end tasks in week one, had received two documented coaching sessions after missing deadlines, and had been called to a meeting and asked to explain before the decision. The checker now reports that she is within probation and the Code's requirements appear met. The "less compelling reasons" standard applies to the reason, and her prospects at the CCMA are poor unless she can show the real reason was something else.

Suppose instead that the letter said the company was restructuring and her post was redundant. The checker's headline becomes that this is a retrenchment, not a probation dismissal, and the warning explains that section 189 consultation and severance pay apply even in month four.

What the calculator does not include

It does not weigh the reason. The Code allows less compelling reasons during probation, but an arbitrator still decides whether the reason given was genuine and whether the dismissal was fair in the circumstances. The checker takes your description of the reason at face value.

It does not assess whether a probation period was reasonable. The Code sets no maximum and the checker invents none; a twelve-month probation for a junior clerk may well be unreasonable, but that is an argument for a hearing, not a calculation.

It does not deal with the content of a performance standard, with whether the training offered was adequate, or with what a reasonable opportunity to improve would have been in your job. It asks whether these things happened at all.

It does not cover fixed-term contracts, which end by their terms rather than by dismissal unless a reasonable expectation of renewal arose, or the position of employees of a temporary employment service.

It does not cover automatically unfair dismissals under section 187, which are unfair whatever process was followed.

When to get advice

If you were dismissed during probation and the checker shows requirements missing, refer the dispute to the CCMA within 30 days of the dismissal. Referral is free, the form is simple, and you can do it yourself; the first step is conciliation, where many of these cases settle. Do not wait for advice before referring, because a late referral needs condonation and the 30 days do not pause.

Get advice before the arbitration if the employer is well represented, if the dismissal letter gives a reason that does not match what you were told, if you believe the real reason was pregnancy, a grievance you raised, union activity or a protected disclosure, or if the amounts at stake are significant. Employers should get advice before dismissing a probationer whenever the process has been informal, because a short written record of expectations, feedback and a hearing is cheap and the absence of one is expensive.

Frequently asked questions

Can I be dismissed during probation for any reason? No. You can be dismissed for a fair reason, and the Code accepts less compelling reasons during probation where they relate to your conduct or capacity, including suitability. You must still be told what is expected, given a reasonable chance to meet it, and heard before the decision. There is no "no reason" dismissal.

What changed in September 2025? The Code of Good Practice: Dismissal, 2025 replaced Schedule 8 of the LRA. For probation, it added suitability as a ground alongside performance and extended the "less compelling reasons" standard to conduct as well as capacity. It kept the requirements of standards, opportunity and a hearing, and it kept the prohibition on using probation to deny permanent status.

How long can probation be? The Code sets no maximum. It must be reasonable having regard to the job and the time it takes to assess suitability. It may be extended, but it should not be used to keep you off permanent status indefinitely; good practice is for the employer to hear you first and say why more time is needed.

Can I be retrenched during probation? Yes, but it is a retrenchment, not a probation dismissal. The section 189 consultation process and severance pay apply.

Do I have the right to refer to the CCMA while on probation? Yes, within 30 days of the dismissal. Probationers have the same protection against unfair dismissal as everyone else.

Does completing probation make me permanent automatically? If the employer does not act before the period ends and you keep working, the appointment is confirmed in practice, and the lower probation standard falls away. The ordinary rules for incapacity then apply to any later performance dismissal.

What can the CCMA award? Reinstatement, re-employment or compensation of up to twelve months' remuneration for an ordinary unfair dismissal. For a procedurally unfair dismissal with a fair reason, compensation is the usual outcome.