Many South African employers mistakenly believe probation allows them to dismiss staff without due process. Labour law experts warn that probationary employees retain full legal protections — and failure to follow proper procedures can result in costly CCMA disputes. A persistent myth continues to circulate in South African workplaces: “Don’t worry, he’s only been here for two weeks.
He’s on probation. We can just tell him it’s not working out and let him go today.” Many employers — and anxious new employees — believe a probation period is a legal free pass where labour laws do not apply. It is often seen as a trial phase during which an employee can be dismissed ‘on the spot’ for any reason, or no reason at all.
This belief is incorrect — and acting on it sends thousands of employers to theCommission for Conciliation, Mediation and Arbitration(CCMA) each year. Commission for Conciliation, Mediation and Arbitration Under South African law, specifically the Code of Good Practice: Dismissal, probation is a period intended to evaluate an employee’s work performance. It allows an employer to assess whether a newly appointed employee can perform the duties for which they were hired and whether they are suited to the organisation.
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Probation is not a temporary contract. A probationary employee remains an employee with full rights under theLabour Relations Act(LRA). Can an employee be dismissed instantly during probation?
An employer cannot simply call an employee in on a Friday afternoon and say, “You’re not a good fit. Goodbye.” Such action would likely constitute an unfair dismissal. While the law recognises that dismissal during probation may be based on less compelling reasons than those required for long-serving employees, the process must still be procedurally fair.
Before dismissing a probationary employee for poor performance, an employer must satisfy three key requirements. Failure to do so will likely render the dismissal unfair: The employer must clearly communicate performance standards and expectations. Adequate training, guidance and resources must be provided.
An employee cannot fairly be dismissed for failing to perform a task they were never properly instructed to complete. Performance must be assessed regularly during the probation period. If concerns arise, they must be raised at the time — not only at the end of probation. Silence may reasonably be interpreted as acceptance of satisfactory performance.
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