It is common for employers to engage employees for a probationary period prior to permanent employment.
The period is usually negotiated and included in the employment contract. If an employer is uncertain whether an employee is suitable for the job, the probationary period may be extended.
After probation there is no automatic right to continued employment, this is at the employer’s discretion.
During probation the employer is entitled to lay down standards which amongst other things may include performance, character, potential and general suitability.
The employer may however not abuse the probation period which should be of reasonable length. The reasonableness will naturally depend on the nature of the job.
The dismissal of a probationary employee will usually be for incapacity and is regulated by Item 8(1) of Schedule 8 of the Labour Relations Act.
The Act requires that the relevant employee be assessed and given reasonable guidance and evaluation. The Code of Good Practice under this Act provides that if an employee’s performance is below standard, the employee should be advised of this and in which regards they are failing.
The employee should be given an opportunity to improve.
The Act further provides that the probation period may be extended but the extension may not be disproportionate to the employer’s purpose.
In addition to this the employer may only extend the probation or dismiss the employee after the employee has been given the opportunity to make representations.
Despite the fact that the reasons for dismissal for poor performance during probation may be less compelling than during confirmed employment, probationary employees are still protected against unfair dismissal and any dismissal should be both substantively and procedurally fair.