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The recently amended Code of Good Practice: Dismissal has once again highlighted a workplace issue that continues to generate substantial Commission for Conciliation, Mediation and Arbitration (CCMA) litigation, namely the management of probation and Poor Work Performance (PWP). While many employers understand that performance should be managed fairly, there remains considerable confusion about the distinctions among probation, PWP, and misconduct.

The amended Schedule 8 does not fundamentally alter the law but reinforces a principle that has long been recognised by the Labour Courts: Poor work performance is an incapacity matter rather than a disciplinary matter. Employers who fail to appreciate this distinction often expose themselves to unfair dismissal disputes despite having legitimate concerns regarding an employee’s performance.

The Purpose of Probation

Probation exists to enable an employer to assess whether a newly appointed employee is suitable for permanent employment. However, probation should not be viewed as a risk-free termination period. The amended Code confirms that employers are required to provide probationary employees with reasonable evaluation, instruction, training, guidance, and support. The objective is not to identify reasons for dismissal but rather to provide employees with a fair opportunity to meet the required standard.

Where concerns arise during probation, they should be communicated promptly, and the employee should be informed of the areas in which performance is lacking. Regular feedback sessions remain critical in demonstrating that the employer acted fairly and reasonably when raising and addressing concerns.

Poor Performance during Probation

One of the most significant misconceptions among employers is that poor performance during probation can simply result in termination at the end of the probationary period.

The amended Code requires a process of assessment and intervention. Before contemplating dismissal, the employer should demonstrate that clear performance standards were communicated and that the employee understood them. Furthermore, it must be shown that appropriate training and guidance were provided, and that the employee was afforded a reasonable opportunity to improve.

Where performance remains unsatisfactory, an employer may consider either extending the probationary period for a legitimate purpose or proceeding with a dismissal process.

Importantly, even during probation, the employee must be afforded an opportunity to respond before a final decision is made.

PWP after Probation

Once probation has ended, the employer’s obligations become more onerous. The amended Schedule 8 places PWP firmly within the realm of incapacity. This distinction is critical because incapacity focuses on an employee’s inability to perform, whereas misconduct concerns an employee’s unwillingness to perform.

Failure to reach the employer’s set standards may arise from the employee’s conduct itself, rather than from an inability to do the job, as would be the case for situations such as dereliction of duty or negligence. It is important to determine the true reason for the failure to perform to ensure that the correct process is followed.

The Labour Appeal Court in ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO drew an important distinction between employees who cannot perform and employees who will not perform. The former requires a PWP process while the latter may justify disciplinary action for misconduct.

Employers should therefore be cautious not to disguise performance concerns as misconduct merely because the employee’s shortcomings are frustrating or operationally disruptive.

What Employers Must Prove

The amended Code identifies several factors that remain central to any inquiry into fairness:

• Whether a required performance standard existed;
• Whether the employee knew, or reasonably should have known, the standard;
• Whether the employee was given a fair opportunity to meet the standard;
• Whether the standard was reasonable and attainable; and
• Whether dismissal was an appropriate outcome.

The focus is therefore not merely on the existence of poor performance but rather on how the employer managed the situation. A common mistake is assuming that poor results alone justify dismissal. The real test is whether the employer can demonstrate a fair process aimed at assisting the employee to improve.

The Importance of Counselling and Support

The amended Code continues to promote a corrective rather than punitive approach. Employers should engage with employees through counselling, coaching, feedback, training, and structured performance improvement measures before considering dismissal.

This does not mean that employers are required to tolerate underperformance indefinitely. The law requires a reasonable opportunity to improve, not an endless one. The extent of support required will depend on factors such as the nature of the role, the employee’s experience, seniority, and the complexity of the performance deficiencies.

 Pre-Dismissal Considerations

Before terminating employment for PWP, employers should also consider whether viable alternatives exist. Depending on the circumstances, alternatives may include additional training, redeployment, a transfer to a more suitable position, adaptation of duties, or demotion by agreement.

Although employers are not expected to create alternative positions, they should be able to demonstrate that reasonable alternatives were considered before resorting to dismissal.

 Getting It Right

The amended Schedule 8 serves as an important reminder that performance management is fundamentally a developmental process.

Employers who approach probation and PWP as opportunities to develop and support employees, rather than merely mechanisms to end employment, are more likely to achieve both operational success and legal compliance. By focusing on guidance, fairness, and meaningful performance management, employers can ensure that dismissal, where ultimately necessary, remains both substantively and procedurally fair.

By Chanré Wes-Khanyase