According to Item 8 of the Code of Good Practice: Dismissal, an employer may require a newly hired employee to serve a period of probation before the confirmation of the employee’s appointment.
Probation is for newly appointed employees only and is used to establish whether or not the appointee’s performance is of an acceptable standard before permanently employing the person. The misconception regarding probation periods usually touches on this point, with many employers believing that when a probation period is close to its end, they may simply inform an employee that their performance is not satisfactory and end their employment. A termination based on this presumption will be deemed both procedurally and substantively unfair.
A probationary period should be reasonable, which in turn will determine how long it will take to establish whether the employee is performing satisfactorily or not. It is advisable that the probationary period be stated in writing, for example as part of the employment contract or letter of appointment.
The questions to ask to determine whether dismissal for poor work performance (in general) would be fair are set out in the Code as follows:
-
-
-
-
Has the employee failed to meet a performance standard?
-
If yes, were the following ensured:
-
-
-
-
Was the employee aware, or could he/she reasonably be expected to have been aware, of the required performance standard?
-
Was the employee given a fair opportunity to meet the required performance standard?
-
Was dismissal an appropriate sanction for not meeting the required performance standard?
The decision must be supported by records proving that all requirements were met in order to afford the employee a fair opportunity to meet such expectations. These records include:
-
Details of all training/coaching provided, including on-the-job training and informal mentoring sessions.
-
Minutes of meetings with the employee.
-
Solutions to address mistakes and poor work performance.
-
Reasonable deadlines given for the improvement of poor work performance.
-
The result of the measures taken to resolve the identified poor work performance.
It is important that a probationer’s performance must be monitored and assessed continuously as from commencement of employment with the above guidelines in mind.
A decision taken at the end of the probationary period not to appoint an employee amounts to dismissal. Although it is not necessary to hold a formal inquiry when dismissing an employee for unsuccessful probation, the rules of natural justice will apply, i.e., the employee must be given the opportunity to make representations, and the decision must be supported by adequate records in order for the employer to justify its decision.
Probation periods or contract clauses must not be seen as a “trial period” by an employer. It should be deemed as being the induction/training period of the employee, integrating them into the new business, i.e., it is only applicable to evaluate the employee’s work performance ability. A probation period may not be used as an easy escape to dismiss a newly appointed employee because the manager does not like him/her or because they do not fit into the business culture.
