WHAT SOUTH AFRICAN EMPLOYEES NEED TO KNOW

UNFAIR DISMISSAL DURING PROBATION:

In South Africa, it is a common belief that an employer has the right to terminate an employee during their probationary period for any reason, or even for no reason at all. However, this is a misconception. Even during probation, any dismissal must be both substantively fair (there must be a legitimate reason) and procedurally fair (a fair process must be adhered to). This is explicitly outlined in the Labour Relations Act (LRA) and the Code of Good Practice on Dismissal.

CAN YOU BE DISMISSED DURING PROBATION?

Yes — but only for a fair reason, such as:

• Poor work performance / not meeting reasonable standards
• Misconduct (e.g. dishonesty, absenteeism, insubordination)
• Incapacity (ill-health or injury)
• Operational requirements (retrenchment)

You cannot be dismissed for unfair reasons such as pregnancy, race, religion, union membership, exercising your rights, or because you are a whistle-blower.

WHAT MAKES A PROBATION DISMISSAL UNFAIR?

The most common unfair dismissals during probation happen in two situations:

1. Poor performance dismissals without proper process The law (Item 8 & 9 of Schedule 8 of the LRA) requires the employer to:

• Set clear, reasonable performance standards in advance
• Evaluate and monitor your performance regularly
• Give guidance, training, and counselling
• Give you reasonable time to improve
• Investigate the reasons for poor performance (e.g. lack of tools, training, or personal problems)
• Allow you to respond before the final decision

If they simply say “you’re not hitting targets, goodbye” without this support and investigation, the CCMA will almost always find the dismissal unfair.

• Misconduct dismissals without a proper hearing Even in probation, serious misconduct still requires a fair disciplinary process. You are entitled to:
• Notice of the allegations
• A chance to state your case
• A neutral chairperson
• The right to bring a colleague or union representative

Skipping these steps usually makes the dismissal procedurally unfair.

WHAT CAN YOU DO IF YOU ARE DISMISSED UNFAIRLY DURING PROBATION?

You have the same rights as permanent employees:

• Refer an unfair dismissal dispute to the CCMA or Bargaining Council within 30 days of dismissal
• If the CCMA finds the dismissal unfair, you can be awarded up to 12 months’ salary in compensation (or, in rare cases, reinstatement)

Recent CCMA awards (2023–2025) show that employees regularly win compensation of 3–8 months’ salary when employers fail to follow the probation guidelines.

QUICK CHECKLIST FOR EMPLOYEES ON PROBATION

• Ask for written performance standards and targets on day one
• Request regular feedback meetings
• If you are struggling, ask for training or support in writing
• Keep records of all communication
• If called to a meeting that could lead to dismissal, insist on your right to a colleague or representative

BOTTOM LINE

Probation serves as a trial phase for both the employer and the employee; however, it does not grant the employer the right to behave unjustly. South African legislation safeguards your rights even during the probationary period — provided you take prompt action (within 30 days), the CCMA is quite supportive of employees in probation-related cases where the correct procedures were not adhered to.