September 12, 2017

Firing an employee after probation

Starting a business is, and always will be, a risk. There are many factors at play that determine whether it will be a success or a failure, one of which is having to employ people. One way employers attempt to combat this risk is to employ people on a probationary basis, in essence giving them an ‘audition’ as an employee. However, employment on a probationary basis is not as much of a solution as it may appear to be.

In terms of labour law, in order to dismiss a probationary employee at the end of his probation period, an employer is required to follow the normal procedure for dismissal for poor work performance.

The Code of Good Practice: Dismissal, prescribes the following steps to be followed before a dismissal for poor work performance can be considered fair:

(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-

(a) given the employee appropriate evaluation, instruction, training, guidance or counselling; and

(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

(3) The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

(4) In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.

Therefore, a standard disciplinary hearing will need to be followed and the employee must be allowed to defend himself and make representations on his own behalf. The employer will have to show that the employee was given fair opportunity to correct his poor performance and the necessary training that would be required to do so. Further, the employee must be given the opportunity, at the hearing or in the past, to state what he believes the reason for his poor work performance to be and what he believes needs to be done to correct it. This is a requirement.

The employer would need to show the following:

(a) whether or not the employee failed to meet a performance standard; and

(b) if the employee did not meet a required performance standard whether or not-

(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii) the employee was given a fair opportunity to meet the required performance standard; and

(iii) dismissal was an appropriate sanction for not meeting the required performance standard.

The employer would need to produce evidence or call a witness that supports the above allegations, i.e. minutes from a meeting in which the eamployee was advised of his shortcomings and given an opportunity to correct them.

Only once all of the above is done may a probationary employee be dismissed without fear of a potential CCMA hearing.

Author: James Bush

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