Probation Period
Also known as: Probationary Period.
What is Probation Period?
A probation period is an initial phase of employment, permitted by item 8 of Schedule 8 to the LRA, during which the employer assesses the employee's suitability. While dismissal for incapacity during probation is easier to justify, the employee is still entitled to evaluation, training, and audi alteram partem before termination.
Drafted and reviewed by
Attorney & Founder, My-Contracts.co.za · Legal Practice Council of South Africa (LPC F17333)
Definition and context
Item 8 of Schedule 8 to the Labour Relations Act 66 of 1995 permits employers to require probation for new appointees or post-transfer appointees. The probation period must be reasonable in duration, determined with reference to the nature of the job and the time it takes to assess the employee\'s suitability. Three months is common for general roles; six months is generally defensible for professional or managerial roles.
During probation the employer must (a) give the employee reasonable evaluation, instruction, training, guidance and counselling, and (b) invite the employee to make representations before any decision to dismiss or extend. Dismissal during probation is still a dismissal under section 186(1) of the LRA — it is not automatic or at-will. The LAC in Stander v Eastern Cape Parks & Tourism Agency (2014) 35 ILJ 2280 (LAC) confirmed that the reason for dismissal during probation must be tested against a lower threshold but must still be fair.
Drafting a probation clause should specify (i) the duration, (ii) the review milestones, (iii) that performance will be assessed against defined job competencies, (iv) the employee\'s right to a pre-termination hearing, and (v) the employer\'s right to extend probation once with reasons. Contracting out of Schedule 8 by calling the probation "fixed-term" is a common drafting trap — section 198B may then treat the relationship as indefinite after three months.
Where this term lives in law
Labour Relations Act 66 of 1995
Sections: 186, 188, 198B, 203
Regulates the relationship between employers, employees, and trade unions, including dismissals and CCMA jurisdiction.
Basic Conditions of Employment Act 75 of 1997
Sections: 37
Sets minimum employment standards including working hours, leave, and termination requirements.
Frequently asked questions
How long can a probation period be in South Africa?
Item 8 of Schedule 8 requires the duration to be reasonable, judged against the nature of the job. Three months is typical for administrative roles; six months is defensible for professional or managerial positions. There is no statutory maximum.
Can an employer dismiss a probationer without a hearing?
No. Item 8(1)(g) of Schedule 8 requires the employee to be given an opportunity to make representations before any decision to dismiss or extend probation. Audi alteram partem applies, though the procedure may be less formal.
Can the notice period during probation be shorter than the BCEA minimum?
Yes. Section 37 of the BCEA permits one week's notice during the first six months of employment. Contractual notice may be longer but not shorter than the statutory minimum.
Can probation be extended?
Yes, once, with reasons. The employer must give the employee an opportunity to state a case and then formally advise the employee of the extension, the reasons and the performance standards expected.
Contract templates using this term
2 templates reference Probation Period.