Can I dismiss someone during their probation period?

Yes, you can dismiss an employee during probation, but not simply because they are on probation. Probation does not remove the right to a fair dismissal under the Labour Relations Act 66 of 1995. What changes is the standard, which is less onerous than for a confirmed employee.

Three things must be true before you dismiss someone on probation:

1. You gave the employee reasonable evaluation, instruction, training, guidance or counselling, so that they had a genuine opportunity to meet the standard.
2. You gave the employee an opportunity to state a case before you decided, and you actually considered what they said.
3. The reason relates to performance or suitability for the job.

Get those three right, record them, and a probation dismissal is defensible. Skip them and you are exposed to an unfair dismissal referral at the CCMA, which a probationary employee is fully entitled to bring.

What probation is for, and what it is not

Probation is a period at the start of employment during which you assess whether the person can do the job and fits the role. It is a trial, not a rights-free zone.

It is not a way to avoid a contract. The Basic Conditions of Employment Act 75 of 1997 applies from day one: written particulars of employment, notice, leave, hours, payslips and the rest. See what are my obligations when I hire my first employee.

It is also not indefinite. The probation period should be determined in advance and be reasonable for the nature of the job. A month may suit a simple role. Several months may suit a technical or managerial one. Extending probation is possible where the employee has not yet met the standard, but you must tell them, give reasons and give a further chance to improve.

And it is not a defence to an unlawful reason. If the real reason is pregnancy, union membership, a protected disclosure or a discriminatory ground, the dismissal is automatically unfair no matter what the probation clause says.

How to do it fairly, step by step

Step one: set the standard in writing at the start. On day one, give the employee a written contract that states the probation period, and a short job description with the specific things you will assess. "Attention to detail" is not a standard. "All quotes checked and issued within 24 hours of a site visit" is.

Step two: evaluate during, not at the end. Meet the employee at sensible intervals, weekly or fortnightly for a short probation. Say clearly what is working and what is not.

Step three: give real support. This is where most small employers lose. Show the person how to do the task, pair them with someone experienced, correct their work and explain the correction. Keep the evidence: dates, what was covered, who did it.

Step four: put concerns in writing. If performance is short of the standard, write it down, give the employee a copy, and set out what must improve and by when.

Step five: hold a meeting before you decide. It does not have to be a full disciplinary hearing with a chairperson. It must be a genuine opportunity for the employee to state a case. Tell them in advance what the concerns are, let them bring a fellow employee or union representative, and listen.

Step six: decide and give reasons. If you dismiss, do it in writing, state the reason, give the notice the contract and the Basic Conditions of Employment Act require, or pay in lieu, and pay out what is owed including any accrued leave.

Step seven: keep the file. Contract, job description, meeting notes, written concerns, the invitation, the employee's response and the outcome letter. That file is your case.

Illustrative example: a hardware store hiring a counter salesperson

The example is illustrative only.

Bhekani Hardware employs Lerato on three months' probation as a counter salesperson. Her contract states the probation period and lists four standards, including accurate stock capture and correct pricing of orders.

In week two the owner notices pricing errors. He shows her the pricing sheet again and gives her the supplier catalogue. In week four he meets her, records that errors continue, writes down what must improve and gives her a copy. In week six he arranges a half day with the senior salesperson. In week eight the errors continue.

He writes to Lerato inviting her to a meeting, sets out the concerns and tells her she may bring a colleague. At the meeting she explains that she was never shown the trade discount structure. That is a real answer, so he extends probation by a month, trains her on the discount structure and records the extension in writing.

If, after that month, the errors continue and she has no further explanation, the owner can dismiss. He has evaluation, instruction, training, guidance and a genuine opportunity for her to state a case, all in writing. If he had simply sent a message in week eight saying probation had not worked out, he would have had nothing to show the CCMA.

What to do this week

1. Check your employment contracts. If they do not state a probation period, you do not have one.
2. Write down the standards for each probationary role, in specific and measurable terms.
3. Diarise review meetings for every person currently on probation.
4. Start a probation file for each of them, even if they are halfway through.
5. Write up any concerns already raised verbally, date them and give the employee a copy.
6. Book a state a case meeting before making any decision about anyone whose probation is ending soon.
7. Check what is owed on termination: notice, accrued leave and any outstanding pay.
8. Make sure employee records are secure. Employee files are personal information under the Protection of Personal Information Act 4 of 2013, so read does POPIA apply to my small business.

Documents and records to set up

• A written employment contract stating the probation period, its length and that performance will be assessed against stated standards.
• A job description listing the specific standards.
• A probation review form, one page, used at each meeting: what was discussed, what was agreed, what support was given, signed by both.
• A training and support log recording every session, manual, shadowing arrangement and correction.
• Written concern letters setting out the shortfall, the required improvement and the date by which it must happen.
• An invitation letter to the meeting before a decision, stating the concerns and the right to be accompanied.
• An extension letter if you extend probation, with reasons and the new end date.
• An outcome letter recording the decision, the reason and the notice.
• A termination pay calculation showing notice, leave and any other amounts.

Realistic timeline

• Day one: contract, job description and stated standards signed.
• Weeks two, four and six: documented review meetings.
• On any shortfall: written concerns and a real opportunity to improve, over a period that is realistic for the job.
• Before the end of probation: the state a case meeting, then the decision.
• If you extend: a written extension of a defined length, with further support.
• If dismissed: the employee has 30 days from the dismissal to refer an unfair dismissal dispute to the CCMA. Conciliation is set down first, and arbitration follows if conciliation fails, which usually takes some months in total.

Common mistakes and what they cost

• Treating probation as a free dismissal window. It is not. The standard is lower, not absent, and the employee can refer the matter to the CCMA.
• No written standards. If nobody wrote down what "good" looks like, you cannot show the employee failed to meet it.
• No training or guidance. The requirement to give reasonable evaluation, instruction, training, guidance or counselling is the heart of a probation case. A commissioner will ask what you did and expect a specific answer.
• Deciding before the meeting. If the outcome letter was drafted before the employee spoke, the opportunity to state a case was not genuine.
• Dismissing for the wrong reason. Misconduct is not poor performance. Serious misconduct on probation is dealt with as misconduct, with the fairness that requires.
• Letting probation lapse and then acting. Once probation ends without an extension, the employee is confirmed and the ordinary, more demanding poor performance process applies.
• No paperwork on notice and final pay. This turns a defensible dismissal into a second dispute.

The cost of getting it wrong is measured in CCMA compensation, which can be a significant number of months' remuneration, plus your own time at conciliation and arbitration, plus the possibility of reinstatement. A file that took ten minutes a week to keep is a great deal cheaper.

If you cannot afford an attorney

You do not need an attorney for a probation process, and at CCMA conciliation and most arbitrations legal representation is limited anyway. The CCMA gives free information and assistance to employers as well as employees on 0861 16 16 16, and its offices and website publish free guidance and templates. The Department of Employment and Labour has offices in every province for questions about the Basic Conditions of Employment Act 75 of 1997. The Small Enterprise Development Agency offers free and subsidised business support that covers basic human resources practice. University law clinics assist in several centres. Legal Aid South Africa focuses on individuals. For a sense of what paid help costs, see what small business and POPIA compliance costs.

Frequently asked questions

How long can probation be? As long as is reasonable for the nature of the job, decided in advance and recorded in the contract. A simple role justifies a short period. A senior or technical role justifies longer.

Can I extend probation? Yes, where the employee has not yet met the standard. Tell them before probation ends, give the reason, set a defined new end date and give further support. Do not extend repeatedly without cause.

Does a probationary employee get notice? Yes. Notice comes from the contract and the Basic Conditions of Employment Act, and you must give it or pay in lieu, along with accrued leave and outstanding pay.

Can they take me to the CCMA? Yes. Probation does not remove the right to challenge an unfair dismissal, and the employee has 30 days from the dismissal to refer the dispute.

What if it is misconduct rather than poor performance? Then it is a misconduct matter, and the fairness required for misconduct applies, including a proper investigation and hearing. Do not use probation as a shortcut around a misconduct process.

Do I still need all this if the person has only been there two weeks? Yes, in proportion. The evaluation, instruction and guidance will be brief, but they must have happened and be recorded.