Managing Probationary Employees

According to Rule 10 (4) of the Code of Good Practice, GN 42 of 2007; an employee can be on probation for a period of not more than 12 months. This is dependent on the nature of the job, the standards required and the practice in the sector. The term of probation has to be made known to the employee before s/he commences employment

An employer, after consultation with the employee, can extend the probation period however the reasons for this extension have to be made known to the employee. Such reasons include that the employee has not yet proved competent to do his job or the suitability of the employee is still under consideration. Rule 10 (5) of the Code of Good Practice, GN 42 of 2007

An employer is obligated to use the probation period to assess whether the employee is performing up to par; whether the employee is compatible with his/her colleagues/clients/general work place; whether the employee has good conduct

According to established case law, this becomes an implied confirmation of the contract. Employers are therefore encouraged to take note of when the probation period lapses

The employer is obligated to follow the set procedures. For incidences of underperformance; the employer ought to notify the employee and give them an opportunity to respond or an opportunity to improve. Rule 10 (7) of the Code of Good Practice, GN 42 of 2007

An employer can terminate the employment of an employee on probation by ensuring that the employee gets an opportunity to be heard. That is; give the employee notification of the concerns, the employee has a chance to respond to the concerns; give an opportunity to improve or correct his behavior. If this fails, then the employee can be terminated by being given notice. The principles of natural justice must be observed that is: rule against bias- no one should be a judge in his own cause (nemo iudex in causa sua) and the right to a fair hearing- let the other side be heard (audi alteram partem). Rule 10 (8) of the Code of Good Practice, GN 42 of 2007

A. Unless otherwise agreed, according to Section 41 of the Employment Labor Relations Act, 2004; the employee ought to be given notice of the length of:

  • 7 days if the employee has worked for one month or less
  • 4 days if the employee is employed on a daily/weekly basis, or
  • 28 days if the employee is employed on a monthly basis