LLexiSA

Managing Employees

Managing Probation Fairly

Probation exists to let an employer properly assess a new employee before confirming permanent employment. The Code of Good Practice: Dismissal (Schedule 8, item 8) sets a lower procedural bar during probation than for a confirmed employee — but 'lower' is not 'none': a probationary dismissal still needs a fair reason and some process.

Key facts

  • During probation, an employer can dismiss (or extend probation) for reasons connected to performance more readily than a confirmed employee — but the employee must still have been given a fair opportunity to improve and know what was expected of them.
  • Extending probation should be for a definite, reasonable further period, with clear reasons given to the employee — indefinite or repeated extensions without genuine assessment are themselves procedurally unfair.
  • A probationary employee can still refer an unfair dismissal dispute to the CCMA — probation does not remove LRA protection, it changes what 'fair' requires in practice.
  • Misconduct during probation (as opposed to poor performance) is generally treated the same as misconduct by a confirmed employee — the lighter probation standard is specifically about performance assessment, not conduct.

The law that applies

  • LRA Code of Good Practice: Dismissal (Schedule 8) — item 8 (probation)
  • Labour Relations Act 66 of 1995 — s 185, s 188

Practical steps

  1. Set clear, written performance expectations at the start of probation.
  2. Give feedback during probation, not only at the end — a dismissal that comes as a surprise is harder to defend.
  3. If extending probation, state the reason and the new end date in writing.
  4. Make a documented decision (confirm or terminate) at or before the probation end date.
  5. Keep records — they matter just as much for probationary dismissals as for any other.

Frequently asked questions

Can I dismiss a probationary employee without any process at all?

No. Even during probation, the employee should be told what wasn't meeting the required standard and given some opportunity to respond or improve before a final decision — the process is lighter than for a confirmed employee, not absent.

Should I confirm employment automatically once probation ends?

No — confirm it explicitly, in writing, once you've assessed the employee. Letting probation lapse without a decision can create ambiguity about whether the employee is now permanent.

Have a specific employee situation?

Ask Chat to Lex. It will take your specific facts and give you a cited assessment — not just the general position above — free.

Ask about managing probation fairly

This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.