ChatGPT ‘executive’ summary

The provided text discusses the concept of probationary periods for employees and the legal considerations related to dismissals during this period. It draws comparisons between South African law, UK law, and Ontario law in Canada, particularly in the context of ILO Convention 158.

Key Points:

  1. Probationary Periods in South Africa:
    • The text highlights that in South Africa, probationary periods are not mandatory, but they are a useful tool for assessing employee performance.
    • The Code of Good Practice allows employers to require newly-hired employees to serve a probationary period before confirming their appointment.
  2. Comparison with the UK:
    • In the UK, there is no legal requirement for probation periods, but they are commonly used. Probation periods can vary, but they are typically around six months.
    • UK law requires employers to show a valid reason for dismissal during the probationary period, and the dismissal must be fair and reasonable.
  3. Dismissal Reasons in South Africa:
    • In South Africa, employers can rely on reasons related to capacity or conduct to terminate employment during or after the probationary period. This includes issues such as unsatisfactory performance or improper behaviour.
    • The text emphasizes the importance of clearly communicating expectations during the probationary period.
  4. ILO Convention 158:
    • The text mentions the ILO Convention 158, which provides that the employment of a worker should not be terminated without a valid reason related to capacity, conduct, or operational requirements.
  5. Dismissal Procedures in South Africa:
    • The Labour Relations Act in South Africa requires employers to prove that dismissals are based on fair reasons related to conduct, capacity, or operational requirements.
    • The text compares the language used in the LRA with that of ILO Convention 158, noting differences in terminology.
  6. Probation Extension and Dismissal Procedures:
    • The probationary period can be extended within reason, and the extension should be communicated in writing.
    • If dismissal becomes necessary during the probationary period, normal procedural and substantive requirements for dismissals should be followed.
  7. Dispute Resolution:
    • Employees have the right to dispute unfair labour practices related to probationary periods. Disputes are subject to compulsory con-arb (conciliation and arbitration) hearings.
  8. Legislation References:
    • The text refers to relevant legislation, including the Labour Relations Act 66 of 1995 in South Africa.

Overall, the text provides insights into the legal framework surrounding probationary periods, dismissals, and dispute resolution in South Africa, with comparisons to the UK and Ontario in Canada.

Original post

In the context of very high unemployment rates in South Africa there is a need to reconsider our approach to employee rights.

In this post an attempt will be made to contrast our law with that of the UK and Ontario vin Canada given that none of us have ratified the ILO Convention 158 concerning termination of employment.

Unlike the United States of America and even to an extent in Ontario in Canada where employees can forfeit their employment ‘just because‘ managment so decides, we abide by some of the core principles of the ILO Convention and  Recommendation.

But with a few exceptions the UK does not provide protection against unfair dismissal for the first 24 months of service.

In South Africa it is only the Code of Good Practice which suggests that until probationary employees have been appointed as employees they do not enjoy all the rights of employees who have been appointed on an indefinite basis.

Another contested area is what is meant by ‘capacity’ and ‘conduct’ in section 188 of the Labour Relations Act (LRA)?

Applying the interpretation of the ILO Committee of Experts it seems that ‘fault’ is not a necessary component of the test.

This is so because apart from ‘operational requirements’, managment can rely on performance issues and behaviour to terminate employment and even illness or ill-health as well.

The concept of a reciprocal duty of trust and confidence was imported into our law in 1995 by Justice LTC Harms in the Supreme Court of Appeal case of CSIR v Fijen [1996] 6 BLLR 685; (1996) ILJ 18 (SCA).

See: Stigma damages considered: Employer contractual duties

Labour Relations Act

The LRA requires employers to prove that dismissals are effected in accordance with a fair procedure and the reason for dismissal is a fair reason

      • related to the employee’s conduct or capacity; or
      • based on the employer’s operational requirements (as defined in  sec 213)

Compare this with article 4 of the ILO Convention 158 which provides that:

“[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination

      • connected with the capacity or conduct of the worker or
      • based on the operational requirements of the undertaking, establishment or service”.

It is doubtful that anything should be made of the use of different words such as

      • ‘fair reason‘ as opposed to ‘valid reason‘ and
      • ‘related‘ instead of ‘connected‘?

Meaning of valid and fair reason

Surely without validity there cannot be any fairness, but validity does not automatically equate with fairness.

The same goes for lawful and fair, because unlawfulness does not always mean that something is unfair.

Mutual trust and confidence and risk managment

See: Risk management not punishment: Not moral outrage

The common law concept ‘implied into the contract’ is the duty of cooperation, which has become associated with an obligation on the parties to observe ‘mutual trust and confidence’.

This reciprocal obligation was imposed on employers and employees and it implies that they should not behave ‘without reasonable and proper cause’ in a way that would harm the trust and confidence between them.

Examples of a breach of mutual trust and confidence have been identified by UK courts in cases where an employer:

      • allowed a worker to be a victim of sexual harassment;
      • ‘failed to investigate a legitimate complaint about H&S’; or
      • ‘arbitrarily, capriciously and inequitably’ imposed a lower pay rise in comparison to colleague’s.

Moreover, in the case of Malik, Lord Steyn proceeded with a broad interpretation of such duty by pointing out that a breach can occur even in situations where the employer’s behaviour

      • does not target the worker as an individual or
      • where employees are unaware of the breach.

However, these principles are not without limits. For example, an employer does not breach the duty of cooperation by not informing workers of fraudulent activities by the management.

Additionally, both employers’ and employees’ obligations from the duty of cooperation may be restricted by the express terms of the contract.

So it is best to require employers to prove not only validity but also fairness in the sense that the necessary employent relationship of trust and confidence has been severely damaged or destroyed ‘without reasonable and proper cause’.

In this context

      • trust relates to honesty, whereas
      • confidence relates to ability to rely on the employee.

ILO Committee of Experts

The Committee of Experts has frequently recalled in its comments that the need to base termination of employment on a valid reason is the cornerstone of the Convention’s provisions.

The Committee of Experts has stated that the adoption of this principle, as outlined in Article 4,

“removes the possibility for the employer to unilaterally end an employment relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof”.

Article 4 of the Convention

“does not merely require the employer to provide justification for the dismissal of a worker, but requires, above all, that, in accordance with the ‘fundamental principle of justification’, the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking”.

It is noteworthy that Article 4 requires that the reason given be connected with one of the following grounds:

      • the capacity of the worker;
      • the conduct of the worker; or
      • the operational requirements of the undertaking, establishment or service.

(i) Reasons connected with the capacity of the worker

A lack of capacity, or aptitude, on the part of the worker can take two forms,

(a) it can result from a lack of the skills or qualities necessary to perform certain tasks, leading to unsatisfactory performance; and

(b) poor work performance not caused by intentional misconduct, as well as various degrees of incapacity to perform work as a result of illness or injury.

(ii) Reasons connected with the conduct of the worker

An act of “misconduct” may belong to one of two categories:

(a) one involving inadequate performance of duties the worker was contracted to carry out, e.g. neglect of duty, violation of work rules, disobedience of legitimate orders, etc.; or

(b) one which encompasses various types of improper behaviour, e.g. disorderly conduct, violence, assault, using insulting language, disrupting the peace and order of the workplace etc.

Application to South Africa

So South African employers contemplating terminating employment and wishing to comply with the law may aver that that there are valid and fair reasons to dismiss related to or connected with

      • work performance that is unsatisfactory, poor or  inadequate, e.g. breaching work rules; or
      • behaviour or conduct that is improper e.g. disorderly or using insulting language.

Employment Rights Act 1996 (UK)

94 The right (See below in s 108 for exclusion of employees with less than 2 years service).

(1) An employee has the right not to be unfairly dismissed by his employer.

(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).

95 Circumstances in which an employee is dismissed.

(1)For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)—

(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

(b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or]

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if—

(a) the employer gives notice to the employee to terminate his contract of employment, and

(b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire;

and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

97 Effective date of termination.

(1) Subject to the following provisions of this section, in this Part “the effective date of termination”—

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

(c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.]

(2) Where—

(a) the contract of employment is terminated by the employer, and

(b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (1)),

for the purposes of sections 108(1), 119(1) and 227(3) the later date is the effective date of termination. . . .

98 General.

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason

      • falling within subsection (2) or
      • some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it—

(a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In subsection (2)(a)—

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.

(6) Subsection (4) is subject to—

(a)sections 8A to 107 of this Act, and
(b)sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).

Exclusion of right

108 Qualifying period of employment.

(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.

Probationary period in UK

Courtesy of Citation

“There’s no legal requirement in Employment Law to have a probation period for employees who are joining your business. However, it’s a really useful tool to help you assess the performance of those employees and make sure they’re the right fit for your business and the role they’re going to perform. If a probation period is right for your business, you should include it in any contract of employment.

What are the probation period rules in the UK?

A probation period is a temporary period to allow you to decide whether someone is a good fit for the job. Probation periods aren’t compulsory, but there are certain rules you should follow to comply with probation employment rights – whether or not you choose to have one.

How long can you extend a probationary period for?

If you do decide to use a probation period, it must be included in an employee’s contract of employment. This should include details like any conditions attached and its duration.

If you’d like the option to extend the probation period if needs be, you should include that in the contract. You should also provide details of what would happen both if the probation period is passed or if unsatisfactory progress has been made.

If you decide not to use a probation period, this must also be stated in the contract.

Probation period length

There’s no set probation period length. Probation periods can vary in length, but most tend to be around six months long.

For more junior roles in the business, it may be easier to decide if an employee is a good fit more quickly, so a three-month probation period could be enough. If you’re considering using a longer probation period, make sure you avoid using a period of two years or more, as this may risk the employee building up enough qualifying service to bring a potential claim for unfair dismissal.

Once an employee has been continuously employed for one month or more, the statutory minimum notice period is one week – which applies to both the employee and you as the employer. So whether they resign or you let them go, you both must stick to the one week notice period.

It’s also important to make a note of when the probation period will come to an end for an employee. If there isn’t a clause in their contract that says that you’ll provide confirmation if their probation has been passed, and they work beyond the probation period specified in the contract of employment, then there could be an argument that they’ve passed their probation by default.

Probation period salary and holiday pay

Even if your employee is in their probation period, they’re still entitled to their employee rights during probation. This means that they’ll still be entitled to holiday time and holiday pay during probation, and should also be paid their normal salary.

Dismissal during employee probationary period

Dismissal of any kind is a sensitive topic, and it’s one that should be handled carefully to avoid any wrongful dismissal claims. If it does come to it and you need to dismiss an employee, then it can be done on the basis of poor performance, gross misconduct, or breach of contract.

To learn more about how to comply with employee rights during probation and during dismissal, visit our blog on dismissal during the probationary period.”

Probation in SA (before confirming employee’s appointment for ‘indefinite’ employment).

CCMA-I846-2018-01 CCMA Info Sheet: Probation 2018

For more information contact the central contact number 0861 161616 or visit our website on www.ccma.org.za or download the CCMA app at #CCMAConnect

GENERAL

Item 8 of the Code of Good Practice: Dismissal, deals with probation. An employer may require a newly-hired employee to serve a period of probation before the confirmation of the employee’s appointment.

The purpose of probation is to establish whether or not the appointee’s performance is of an acceptable standard before ‘permanently’ employing the employee. Probation is for newly appointed employees only.

A probationary period should be reasonable. This will depend on the nature of the job, which in turn will determine how long it will take to establish whether the employee is performing satisfactorily or not.

As a general guideline, the more complex the nature of the job, a probationary period of e.g. a shorter period of time may be sufficient to evaluate the performance of a Receptionist, whereas a longer period may be appropriate for e.g. an Accountant.

It is advisable that the probationary period be stated in writing (e.g. as part of the employment contract or letter of appointment) and that the company’s expectations during the probationary period be communicated clearly and are understood by the employee at the commencement of the employment and not during the course of employment.

The probationary period may be extended, within reason, where the employer is not convinced that the employee is performing to the required standard. If the period is extended, it should once again be done in writing. The purpose of the extension is to give such employee an opportunity to improve on the identified shortcomings.

PROBATION AND DISMISSAL ON GROUNDS OTHER THAN PERFORMANCE

Should it become necessary to dismiss an employee during the probation period for a reason other than poor performance, the normal procedural and substantive requirements are valid and need to be applied. Examples of such dismissals would include misconduct, incapacity due to ill health / injury or retrenchment.

Therefore, in brief should an employee on probation be accused of theft, a disciplinary hearing should be held. Where retrenchment has become necessary, a consultation process should be followed prior to the retrenchment.

A probationary employee cannot be dismissed for reasons that are automatically unfair e.g. participation in a lawful strike. A probationary clause cannot be relied upon for dismissing a probationary employee on operational requirements.

Probation serves to identify performance problems before permanent employment is confirmed and to reasonably address these problems in various ways as discussed below.

POOR PERFORMANCE PROCEDURES

During the probationary period, performance of the employee should be assessed. If the employee fails to meet the required standards or displays behaviour that is incompatible with the ethos of the workplace, the employee should be advised of these shortcomings.

This means that the employer should evaluate an employee during the probationary period and should provide regular feedback to him or her.

An employer should give an employee on probation, reasonable evaluation, instruction, training, guidance or counselling as required by him/her in order to render satisfactory work.

Where performance problems continue despite such intervention, the employer may follow incapacity procedures.

It is not necessary to hold a formal inquiry. The rules of natural justice will apply (e.g. when making representations the employee may be assisted by a fellow employee).

Only after considering all representations may the employee be dismissed or the probation period be extended. The finding should be made in writing. Where the probation period is extended, the employer needs to set out clear performance standards that the employee should meet during the specified period of time.

SUBSTANTIVE FAIRNESS

There must also be substantive fairness – in that there must be fair reasons as to why the employee is dismissed or the probation period extended.

It should be noted though that the employer is not required to have as compelling reasons for the dismissal as would be the case with an employee who is not on probation (i.e. with employees who are ‘permanently’ employed).

The Code of Good Practice for Poor Performance: Incapacity, does not apply to probationary employees.

DISPUTE RESOLUTION

An employee may refer an unfair labour practice dispute concerning an act or omission relating to probation to the CCMA or a Bargaining Council within 90 days of the act or omission.

Where a probationary employee has been dismissed, such a dispute may be referred to the CCMA or a Bargaining Council within 30 days of the date of dismissal or date of outcome of an appeal hearing (where applicable).

Unfair labour practice or unfair dismissal disputes relating to probation are scheduled for compulsory con-arb hearings.

See CCMA information sheet on con-arb hearings.

RELEVANT LEGISLATION

 Labour Relations Act 66 of 1995 as amended, section 188 and Item 8 of Schedule: Code of Good Practice: Dismissal