How to manage a non-performing probationer

As per the Code of Good Practice (Schedule 8 of the LRA) i.e (Labour Relations Act), employers must dispense with pre-dismissal procedures and prove that a probationary employee was given sufficient feedback, support and a fair opportunity to remedy/improve his/her performance/incompatibility concerns before he/she is dismissed.  

However, as per Schedule 8,  the Courts have to accept less compelling reasons for dismissal during probation periods than thereafter” …which means we don’t have to subject a Probationer to a formal Incapacity i process, like we would have to do with an employee who has completed their probation periods ….so whilst we must not fear dismissing an employee during probation, a fair procedure still needs to be followed when dismissing an employee during probation.

It is always my recommendation to conduct probationary reviews with new employees at least by week 8.

Ensure that the Probationer understands what is expected from him/her and share any concerns you have with him/her.

Ensure that you categorically inform a non-performing probationer that should his/her performance not improve to a reasonable level during the probation period, that such could lead to termination based on his/her failure to successfully complete his/her probation period.

If you elect to extend the probation period, please issue the employee with correspondence to this effect.

The extension is to give him/her a fair chance to remedy the areas of deemed poor work performance/or even incompatibility.

Before terminating his/her services I suggest that you issue such an employee with an ultimatum.

Remember there is no need to subject a probationary employee to an Incapacity Hearing before exiting him/her whilst they are still undergoing their probation period.

You must however allow him/her to make representation in a final probation review meeting and if you elect to dismiss him/her then issue him/her with a Dismissal notification.

Reference articles:

Code of Good Practice (Schedule 8 of the LRA)

CCMA notes reprobation

Please view the Dealing with Probationers procedure and various Probationer templates on our Easy HR website.

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