From the Cape Times Monday December 9, 2002 Gold Bar

Labour law offers help to probationers

THE LABOUR Relations Act (LRA) provides that newly hired employees may be placed on probation for a reasonable time.

The length of probation depends on the job being assessed, and as a rule many employers specify a three-month "trial period".

It is a misconception that employers may dismiss probationers on a whim at the end of the probationary period. Probationers are employees and are entitled to the rights and protections afforded by the Labour Relations Act and other employment legislation.

The purpose of probation is to assess the employee's suitability for employment. The assessment for suitability includes an evaluation of whether the employee is meeting the performance standards of the job as well as whether the employee fits in with the organisational culture.

In circumstances where a probationary employee exhibits unsatisfactory work performance, there is a positive duty to provide appropriate evaluation instruction training, guidance and counselling. This process is the same as that followed when dealing with employees who have successfully worked beyond their probation period and long serving employees whose performance deteriorates after the probationary period.

The obligation to monitor and advise probationers of their progress is even greater at the outset, as the act places great emphasis on the process.

While the CCMA (Council for Conciliation, Mediation and Arbitration) may not scrutinise the reason for non-confirmation of a probationer too closely, it will scrutinise the process leading to dismissal.

In short, if there has been little or no assessment and counselling, the dismissal of a probationer will be deemed to be procedurally unfair.

Prior to the amendments to the LRA that came into effecty in August, the difference in the management of employees during their probationary period and after the period was slight.

The difference lay in the obligation of employers to provide employees beyond their probationary period a reasonable period of time to improve, and there was a duty to consider alternatives to dismissal, such as demotion and transfer.

This difference caused consternation among employers in that the process for managing poor performance whether during or beyond the probationary period was virtually identical.

As a result of these insignificant differences, many employers elected to dispose of the probationary period entirely.

During the probationary period employees must be assessed and employers are required to give reasonable evaluation instruction training, guidance and counselling.

In terms of the amendment probation may be extended as an alternative to dismissal if the employee has failed to meet the required performance standards.

Fundamentally the employer is still required to advise the employee in respect of which performance standards it believes the employee is incompetent.

An employer who wishes to dismiss a probationer may only do so after it has considered any representations made by the probationer who, like any employee facing an incapacity or misconduct hearing, is entitled to be represented by a fellow employee or a shop steward.

Prepared by Jeremy Crawford, attorney and joint head of the Labour Division of NMG-LEVY Consultants and Actuaries.
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