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Thread: Probation period rules

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    just me duncan drennan's Avatar
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    Probation period rules

    Are there any laws or codes which cover (or give guidelines) for probation periods at the beginning of employment?
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    Site Caretaker Dave A's Avatar
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    I'd have to check the regs to get the exact limits, but our employment contract which passes muster includes a standard three months probation period with 24 hours notice from either side - employer or employee.
    The trouble with opportunity is it normally comes dressed up as work.

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    just me duncan drennan's Avatar
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    Quote Originally Posted by Dave A View Post
    I'd have to check the regs to get the exact limits, but our employment contract which passes muster includes a standard three months probation period with 24 hours notice from either side - employer or employee.
    Yes, the three month, 24hr thing seems to be pretty standard and accepted practice. It falls outside of the BCEA AFAIK though (I did a quick scan, but didn't find anything).

    Someone asked me about this today, so I was just wondering what law was behind it. I suspect there is a large amount of common law established by CCMA cases, but I'm really not sure. Are there possibly some codes of good practice which have some guidelines?
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    Site Caretaker Dave A's Avatar
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    I don't think that's the issue. I think it is about how long you can keep an employee as temporary until you are obliged to appoint them as permanent staff. There is also something about notice periods in those regs too. Kinda like the sick leave provision. But I'm going to have to look them up to make sure, and EOM it's not going to happen today from my side
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member Marq's Avatar
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    I suspect there is a large amount of common law established by CCMA cases, but I'm really not sure.
    Thats the way I understand it to be. I was forced to attended to a ccma case recently by one of my ex staff members and this issue came up. My three months period was considered reasonable. The whole issue hangs on what you put in your employment contract. Beyond three months is unreasonable and there is a general reasonableness test equation of time verses job function. In other words a floor sweeper only needs a few days/weeks to learn to sweep but a teckie type will need more time for everyone to check everyone out.

    Another issue that came up was that there was still an expectation for the employer to pay notice pay on a normal two week type basis again depending on the notice period required. So it did not become a simple 24hour story.

    No law was referred to and everything was based on precedent.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Marq View Post
    No law was referred to and everything was based on precedent.
    I chewed over this at the time and I find myself questioning this again.

    Surely anything agreed in a CCMA process cannot be considered a precedent for wider application. Perhaps a case that has run its course through the labour courts might qualify though.
    The trouble with opportunity is it normally comes dressed up as work.

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    Rulings based on the terms such as "Fair expectation" and "Reasonable" etc. when no specific definition is provided, should not permit precedence.

    Surely that is the point of the CCMA process, that employement has so many variables, in achieving a "fair" resolution, from both the employer and employees point of view - that the facts of each situation should be taken into account.

    Yvonne

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    Platinum Member Marq's Avatar
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    Fairness in rulings?

    Surely anything agreed in a CCMA process cannot be considered a precedent for wider application.
    Been away for a while - so just catching up a bit.

    I think their general attitude is fairness to all - The commisioner people I dealt with there certainly gave me this impression - but in doing this they set their own rules and standards that are sometimes out of the boundaries as set down in law.

    They know that you can disagree and take them on in the labour court - but then they also know that this means lawyers and money and that fighting principles in court is a wishy washy business which somehow never has a satisfactory answer.

    Bottom line for them is - do you want to pay the ex-employee something and make this problem go away or do you want to pay a bunch of lawyers and maybe the ex-employee a lot.

    One might as well go down to the casino.

    Bottom line for us is - make sure your documents are in order and the various processes adherred to. Follow the system as laid down in the labour law and they will generally back you up and fight on your side.

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    Quote Originally Posted by dsd View Post
    Yes, the three month, 24hr thing seems to be pretty standard and accepted practice. It falls outside of the BCEA AFAIK though (I did a quick scan, but didn't find anything).

    Someone asked me about this today, so I was just wondering what law was behind it. I suspect there is a large amount of common law established by CCMA cases, but I'm really not sure. Are there possibly some codes of good practice which have some guidelines?

    Hi there,

    You could read Schedule 8 Code of Good Practice : Dismissal, Probation. (Labour Relations Act, 66 of 1995) Be very carefull of the three month, 24 hr standard. Probationers have the same rights in terms of termination of the contract as any full time employee. The 24 hr thing would not stand should an unfair dismissal dispute be referred.

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    Quote Originally Posted by Marq View Post
    Thats the way I understand it to be. I was forced to attended to a ccma case recently by one of my ex staff members and this issue came up. My three months period was considered reasonable. The whole issue hangs on what you put in your employment contract. Beyond three months is unreasonable and there is a general reasonableness test equation of time verses job function. In other words a floor sweeper only needs a few days/weeks to learn to sweep but a teckie type will need more time for everyone to check everyone out.

    Another issue that came up was that there was still an expectation for the employer to pay notice pay on a normal two week type basis again depending on the notice period required. So it did not become a simple 24hour story.

    No law was referred to and everything was based on precedent
    .
    the issue of notice is a requirement in terms of the Basic Conditions of Employment Act and would not have been based on precedent. The specific section and Act is not always quoted in these processes unless you ask why are you saying so and so, otherwise these processes would become an endless ramble of exactly what the law says.

    The BCEA sets out the notice periods for specific employment periods. No contract of employment can be less favourable than the BCEA, therefor the 24 hour notice is deemed to be less favourable and you would have to comply with the statutory notice periods.

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