Unfair Dismissals During Probation Periods: A South African Employer’s Guide

Dismissal during probation in South Africa is one of the most misunderstood areas of labour law, and it’s a common source of disputes at the CCMA. In Episode 1 of our podcast series, Christo van Niekerk, Managing Director, and Jadene Oelschig, Director of Operations, unpack the legal framework governing probation and highlight common employer mistakes.

What is Probation in Labour Law?

Probation is a structured trial period that allows an employer to assess whether an employee is suitable for a role. This includes evaluating performance, adaptability, and cultural fit within the organisation.

Importantly, probation is not a loophole to terminate employment without consequence. South African labour law on probation periods, including the Labour Relations Act and the Code of Good Practice,  still requires every dismissal to be fair, even during a trial period.

Can You Dismiss an Employee During Probation?

Yes, but only if the dismissal is both substantively and procedurally fair. Handled correctly, dismissal during probation is a straightforward, lawful process.

From a substantive fairness perspective, the employer must prove that the employee failed to meet a reasonable and clearly communicated standard. Expectations must be realistic, especially for new employees who are still learning.

From a procedural fairness perspective, employers must actively manage the probation process. This includes:

• Monitoring performance
• Providing regular feedback
• Offering training and support
• Allowing a fair opportunity to improve

A dismissal should never come as a surprise. If it does, the process was likely flawed. Getting the probation dismissal procedure wrong is one of the main reasons employers end up at the CCMA, defending a case of unfair dismissal during probation.

Extending a Probation Period

Employers may elect to extend probation where an employee shows potential but has not yet met the required standard. Extending a probation period in South Africa is common and lawful, provided the extension is:

• Reasonable
• Justified
• Discussed with the employee
• Implemented before the probation period ends

Proper documentation is critical here. Without it, even a fair decision can be very difficult to defend if it’s ever challenged.

Common Mistakes When Dismissing an Employee During Probation

A frequent employer mistake is treating probation as a workaround to avoid permanent employment obligations, for example, by using fixed-term “probation contracts” or cycling employees through repeated probationary roles. This kind of practice is a common trigger for CCMA probation dismissal claims, and can just as easily be challenged as an unfair dismissal during probation.

How Employers Can Reduce the Risk of an Unfair Probation Dismissal

Reducing the risk of a CCMA probation dismissal starts with active management, clear communication, and proper documentation throughout the probation period. Employers who fail to guide and support employees during this period are the ones who most often end up disputing the outcome at the CCMA.

View the full discussion on probation dismissals:

Before dismissing an employee during probation, it is essential to ensure that your process complies with South African labour law. Employers are encouraged to seek professional legal advice before taking any action.

CVN Attorneys assists employers with probation management, performance processes, and fair probation dismissal procedures to reduce risk and ensure compliance.

Contact CVN Attorneys today for assistance in probation related matters.