Probation: how to dismiss a probationary employee fairly

November 11, 2026

Many employers treat probation as a trial period during which a new employee can be let go at will. That is not the law in South Africa. A probationary employee is an employee, protected against unfair dismissal by the Labour Relations Act 66 of 1995 (LRA) from the first day of work.

Probation does have a real purpose. It gives the employer a structured opportunity to assess whether a new employee can do the job and fits the role before employment is confirmed. Used properly, it allows an employer to end an unsuccessful appointment with a simpler process than would apply to a long-serving employee. Used carelessly, it leads to CCMA referrals, reinstatement orders and compensation awards.

The rules were updated when the new Code of Good Practice: Dismissal took effect on 4 September 2025, replacing the old Code in Schedule 8 to the LRA. With the end of the year approaching, when many employers review recent appointments, this is a good time to check that your probation practice matches the current Code.

What probation is for

Probation allows an employer to evaluate a newly appointed employee before confirming the appointment. Under the new Code, that evaluation is not limited to work performance. It extends to the employee’s general suitability for employment, which commentators have read as including conduct and how the employee fits into the workplace.

Probation should not be used for any other purpose. It is not a way to avoid the obligations that apply to permanent employees, and an employer should not keep employees on rolling probation to deny them security of employment.

Setting up the probation period

The new Code does not prescribe a fixed length for probation. The period must be agreed and specified before the employee starts, usually in the letter of appointment or employment contract, and must be reasonable. What is reasonable depends on the nature of the job and how long it takes to properly assess whether the employee is suitable. A few weeks may be enough for a routine role. A senior or technical role may justify a longer period.

A well-drafted contract should state:

that the appointment is subject to probation, and for how long;
the standards and outputs the employee is expected to meet;
how and when performance will be reviewed; and
that probation may be extended, and on what basis.

The employer’s duty to guide and assess

An employer cannot simply wait for probation to end and then announce that the employee did not make the grade. The Code expects the employer to give the employee reasonable evaluation, instruction, training, guidance or counselling during probation, appropriate to the job and to the size of the employer.

In practice this means:

explaining the standards clearly at the start;
holding regular review meetings, and keeping short written notes of them;
telling the employee promptly when there is a problem, and what needs to improve; and
giving the employee a fair chance to improve before a decision is made.

Many unfair dismissal findings in probation cases come down to the same problem: the employer cannot show that the employee was told what was wrong and given help to fix it.

Extending probation

If the employee has not yet met the required standard, but there is a realistic prospect of improvement, the employer may extend the probation period rather than dismiss. An extension should be for a reasonable, defined period and should be linked to specific areas of concern.

The new Code requires the employer to give the employee an opportunity to make representations before deciding either to extend probation or not to confirm employment, and to genuinely consider those representations. An extension imposed without discussion may itself be challenged.

Dismissing a probationary employee fairly

Dismissal during or at the end of probation must still be substantively and procedurally fair. Courts and arbitrators have long accepted that the reasons for not confirming a probationary appointment may be less compelling than the reasons needed to dismiss an employee whose appointment has been confirmed. That does not mean that no reason is needed. The employer must still have a fair reason, connected to the employee’s performance or suitability, and must be able to prove it.

A fair process usually involves:

Informing the employee in writing of the concerns about performance or suitability.
Giving the employee a reasonable opportunity to respond, and to be assisted by a trade union representative or fellow employee if they wish.
Considering the response properly, and considering alternatives such as an extension, further training or a different role.
Informing the employee of the decision and the reasons, in writing.
Giving notice in terms of the contract and the Basic Conditions of Employment Act 75 of 1997, which requires at least one week’s notice during the first six months of employment.

If the reason for dismissal is misconduct rather than performance or suitability, the employer should follow the ordinary misconduct principles in the Code, even if the employee is still on probation.

Small businesses

The new Code recognises that small businesses have fewer resources and less HR expertise, and that arbitrators must take this into account. A small employer may follow a simpler, less formal procedure. However, a simplified procedure is not the same as no procedure. A short meeting at which the concerns are explained and the employee is given a chance to respond is still required.

What happens if the dismissal is challenged

A probationary employee who believes they were unfairly dismissed can refer a dispute to the CCMA or a bargaining council, generally within 30 days of the dismissal. Section 191(5A) of the LRA provides that disputes about dismissal for a reason relating to probation are dealt with by the con-arb process, in which arbitration starts immediately if conciliation fails. These disputes therefore move quickly, and employers should have their documents ready.

If the dismissal is found to be unfair, the arbitrator may order reinstatement or compensation. Arbitrators consider the Code when deciding fairness, so an employer that ignored its guidance will find a dismissal difficult to defend.

Practical checklist for employers

State the probation period, standards and review process in the contract before the employee starts.
Keep the probation period reasonable for the role.
Hold regular review meetings and keep brief written records.
Raise concerns early and provide guidance, training or counselling.
Give the employee an opportunity to make representations before extending probation or deciding not to confirm.
Consider alternatives to dismissal.
Give written reasons and the correct notice.
Do not use probation to avoid confirming employees indefinitely.

How O’Reilly Law can help

We draft employment contracts and probation policies that reflect the new Code of Good Practice: Dismissal, and advise employers on managing probationary employees, extensions and non-confirmation decisions. We also represent employers at the CCMA and bargaining councils when probation dismissals are challenged.

Contact us for advice before you dismiss a probationary employee.

This article is general information and not legal advice. Correct as at November 2026.