Probation period rules

[duncan drennan]

Are there any laws or codes which cover (or give guidelines) for probation periods at the beginning of employment?

[Dave A]

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.

[duncan drennan]

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?

[Dave A]

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

[Marq]

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.

[Dave A]

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.

[Yvonne]

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

[Marq]

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.

[MLK]

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.

[MLK]

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.

[Dave A]

It looks like MLK is onto something here.

The Basic Conditions of Employment section 37 is as follows:

1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than--

a) one week, if the employee has been employed for six months or less;

b) two weeks, if the employee has been employed for more than six months but not more than one year;

c) four weeks, if the employee--

i) has been employed for one year or more; or

ii) is a farm worker or domestic worker who has been employed for more than six months.



2)

a) A collective agreement may permit a notice period shorter than that required by subsection (1).

b) Despite paragraph (a), a collective agreement may permit the notice period of four weeks required by subsection (1)(c)(i) to be reduced to not less than two weeks.

I couldn't track down a copy of Schedule 8, though.

[duncan drennan]

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.

I can't remember the exact details off the top of my head, and couldn't find them with a quick scan, but my understanding of the BCEA is that certain sections are negotiable (must have in writing) if the employee earns over a certain amount, or depending on the employees position (e.g. Sec 6-1)

[Dave A]

And I want to know what I'm supposed to do when the employee gives an "instant" (no notice) resignation the day after pay day!

Unpaid leave of absence?

[RKS Computer Solutions]

I just came back from my accountant, sad day as one of their brightest is leaving... Here is their policy...

Up to one month worked for the company: 24hour notice
Up to a year worked for the company: 2weeks notice
After working for the company for a year: 4weeks notice

[stephanfx]

I think probation is totally up to the employer in the end, if it does not seem to work out or the person is not happy, then 24 hours should be fair. We had a person working for us for a year and 2 months, after which he found a better position elsewhere. We knew he was really excited to go, and when he asked for 24 hours, it was given to him.

In the end it is up to the employer, IMO