PUTTING STAFF ON TERMS: PROCEDURES

by | Jan 14, 2026 | Human Resources

In South Africa, placing a staff member on terms, commonly understood as placing an employee on probation or addressing performance issues through a formal process, is governed by the Labour Relations Act 66 of 1995 (LRA), specifically Schedule 8: Code of Good Practice – Dismissal, and the Basic Conditions of Employment Act 75 of 1997 (BCEA). The process must be fair, transparent, and compliant with labour laws to avoid unfair dismissal claims. Below is a detailed outline of the procedures to follow when placing a staff member on probation or addressing performance-related issues:

1. Understanding Probation in South Africa

Probation is a period during which an employer assesses a new employee’s performance, conduct, and suitability for a role before confirming permanent employment. It is typically used for newly hired employees but can also apply to existing employees in certain cases, such as after a promotion or transfer to a new role. The purpose is to evaluate:

  • The employee’s ability to perform required duties.
  • Their integration into the workplace culture.
  • Overall suitability for the position.

Probationary employees are full employees from day one and enjoy protections under the LRA and BCEA, including fair labour practices and rights to leave, salary, and fair treatment.

2. Procedures for Placing a Staff Member on Probation

When initiating a probationary period, employers must follow these steps to ensure compliance with South African labour law:

a. Pre-Employment Phase

  1. Include Probation in the Employment Contract:
    • Clearly state the probationary period in the written employment contract.
    • Specify the duration (typically 3–6 months, depending on the job’s complexity).
    • Outline performance standards, expectations, and assessment procedures.
    • Include notice periods applicable during probation (at least one week as per the BCEA, Section 37).
    • Communicate these terms to the employee before they start work.
  2. Set Clear Expectations:
    • Discuss job requirements, duties, and performance standards.
    • Identify any skills gaps and establish development needs.
    • Provide clear, measurable performance criteria for assessments.

b. During the Probationary Period

  1. Provide Support and Training:
    • Offer evaluation, instruction, training, guidance, or counseling to help the employee meet performance standards.
    • Assign mentors or supervisors to assist with onboarding and integration.
    • Provide necessary tools, software, and resources to enable effective performance.
  2. Conduct Regular Performance Reviews:
    • Monitor performance from day one and conduct formal review meetings at regular intervals (e.g., monthly or bi-weekly).
    • Provide constructive feedback on performance and document all discussions.
    • Address shortcomings promptly and offer support to rectify issues.
  3. Ensure Procedural Fairness:
    • If performance issues arise, allow the employee to respond and state their case, with assistance from a trade union representative or fellow employee if requested.
    • Document the employee’s input on the cause of underperformance and suggested remedies.
    • Implement agreed-upon measures to address performance issues.
  4. Maintain Detailed Records:
    • Keep written records of performance assessments, feedback sessions, training provided, and any agreed-upon improvement plans.
    • Document outcomes of review meetings and any measures taken to support the employee.

c. Extending Probation (If Necessary)

  • If the employee shows potential but needs more time to meet performance standards, the employer may extend the probationary period.
  • The extension must be reasonable, justified, and communicated in writing.
  • Clearly outline the reasons for the extension, new performance goals, and the duration of the extended period.
  • Note that extending an unsuccessful probationary period without clear justification may not be effective and could lead to legal challenges.

d. Concluding Probation

  • At the end of the probationary period, assess whether the employee has met the required performance standards.
  • If successful, confirm permanent employment in writing, specifying the terms of the permanent contract (e.g., salary, benefits, responsibilities).
  • If unsuccessful, follow the dismissal procedures outlined below.

3. Procedures for Addressing Poor Performance During Probation

If an employee’s performance is unsatisfactory during probation, the employer must follow fair procedures before considering dismissal. The Code of Good Practice: Dismissal (Schedule 8 of the LRA) outlines the following steps:

  1. Investigate Performance Issues:
    • Conduct an investigation to identify the reasons for unsatisfactory performance.
    • Ensure the employee was aware (or could reasonably be expected to have been aware) of the required performance standards.
  2. Provide Support and Opportunity to Improve:
    • Offer appropriate evaluation, instruction, training, guidance, or counseling.
    • Agree on a reasonable period for improvement and document the plan.
    • Allow the employee to propose solutions to address performance issues.
  3. Hold a Formal Meeting:
    • Invite the employee to a meeting to discuss their performance.
    • Allow them to be assisted by a trade union representative or fellow employee.
    • Discuss the performance shortcomings, review the support provided, and assess whether the employee has had a fair opportunity to improve.
  4. Consider Alternatives to Dismissal:
    • Explore options such as extending the probationary period, reassigning duties, or providing additional training.
    • Dismissal should be a last resort after all reasonable efforts to remedy the situation have failed.
  5. Decision to Dismiss:
    • If dismissal is deemed appropriate, ensure it is for a fair reason (e.g., inability to meet performance standards despite support).
    • Provide the employee with written notice of termination (at least one week, as per the BCEA, or payment in lieu of notice).
    • Inform the employee of their right to refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a relevant bargaining council within 30 days of dismissal.
  6. Document Everything:
    • Maintain comprehensive records of the investigation, performance reviews, support provided, and the dismissal process.
    • These records are critical if the employee challenges the dismissal at the CCMA.

4. Key Legal Considerations

  • Fairness: Probationary employees are protected against unfair dismissal under the LRA. Employers must demonstrate both substantive fairness (valid reason for dismissal) and procedural fairness (proper process followed).
  • Non-Performance Dismissals: If dismissal is for reasons other than performance (e.g., misconduct, retrenchment, or ill health), follow the relevant procedures for those grounds as outlined in the LRA. A probationary clause cannot be used to dismiss for operational requirements.
  • CCMA Precedents: Failure to follow fair procedures can lead to compensation awards. For example:
    • In Tharratt vs Volume Injection Products (Pty) Ltd (2005), the CCMA found a dismissal unfair due to the employer’s failure to investigate the cause of poor performance, awarding three months’ compensation.
    • In Fraser vs Caxton Publishers (2005), a dismissal for misconduct was deemed unfair due to lack of procedural fairness, resulting in four months’ compensation.
  • Written Policy: Employers should have a clear probationary policy outlining performance standards, evaluation methods, and procedures for addressing issues. This ensures consistency and transparency.

5. Best Practices for Employers

  • Structured Onboarding: Implement orientation programs to introduce employees to company culture, processes, and expectations.
  • Assign Mentors: Pair new employees with mentors to help them navigate systems and build confidence.
  • Timely Feedback: Address performance issues as they arise, rather than waiting until the end of probation.
  • Customized Training: Tailor training programs to the employee’s role and skill level.
  • Legal Advice: Consult a labor law specialist to ensure compliance with the LRA and BCEA, especially before dismissing an employee.

6. Employee Rights During Probation

  • Employees on probation are entitled to:
    • Full salary and benefits (e.g., annual leave, sick leave) from day one, as per the BCEA.
    • Protection against unfair dismissal and unfair labour practices under the LRA and Section 23 of the Constitution.
    • The right to be heard and represented during performance discussions or disciplinary processes.
  • Employees can refer disputes to the CCMA or a bargaining council if they believe their dismissal was unfair.

7. Conclusion

Placing a staff member on probation in South Africa requires a clear, fair, and well-documented process. Employers must include probation terms in the employment contract, provide ongoing support and feedback, and follow fair procedures when addressing performance issues or considering dismissal. By adhering to the Code of Good Practice: Dismissal and maintaining detailed records, employers can minimize the risk of unfair dismissal claims while fostering a supportive environment for new employees.

For further details on legal obligations or specific cases, consult a labour law practitioner or refer to resources such as the Labour Guide South Africa (labourguide.co.za) or the CCMA (ccma.org.za).

Note: If you meant “placing on terms” in a different context (e.g., disciplinary action or contract termination for existing employees), please clarify, and I can provide a tailored response.