Once an employment relationship is created all employees have a right not to have their employment terminated unfairly. Employers are required to comply with fair procedures and prove that the reason for termination was valid, fair and reasonable. If the reason is related to the employee’s conduct employers must prove not only the facts but that the outcome irretrievably breached the essential trust relationship.

A lower standard of proof for newly hired employees was introduced in 2002 when the reason for termination was related to poor or unsatisfactory performance during a probationary period. In other words whilst employers must constantly assess and evaluate the newly hired employee’s ability to perform in the new job the Code of Good Practice: Dismissal (Schedule 8 to the LRA) provides the necessary guidance and states in item 8(1)(j):

“Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.

The recent Labour Court decision in Makubalo v Council for Higher Education [2010] JOL 25063 (LC) is probably the first case in which thorough and proper consideration has been given to the requirements of the Code relating to probation and the duties imposed on employers.

Bhoola J reviewed and upheld a CCMA award in which the commissioner upheld the employer’s decision to terminate the employment of a manager in the Institutional Audit Directorate during the extended probationary period.
The manager was employed on a 2 year fixed-term contract subject to 3 months probation which period had been extended twice providing the manager with 7 months of probation. After being provided with an opportunity to conduct an actual audit, as opposed to being a mere observer, her superior stated that the manager ‘lacked the intellectual, social and administrative capacity to conduct the audit’.

In para [16] Bhoola J states:

[16] The arbitrator found correctly that in evaluating the fairness of the dismissal of an employee on probation in the context of Schedule 8 The Code of Good Practice: Dismissal (“the Code”), that “one needs to accept less stringent requirements for dismissal as compared to that applicable to tenured employees”.

It is not clear from the judgment what the source of that quote is but it needs to be pointed out that the concept of ‘tenure’ appears to be foreign to South Africa and does not appear in our labour legislation. The use of that word should be discouraged as it suggests that after probation employees have a type of ‘right to a job for life’. As mentioned above employers are allowed to terminate employment provided there is a valid and fair reason and follow a fair procedure.