Week beginning Sunday, 20 April 1997 Back to BT Labour Guides main page

WELCOME to the second edition of BT Labour Guides. As promised, this week we will be tackling the thorny issue of probationary periods for new employees. In addition, we give extensive comment on the issue of dismissals. Rael Solomon and The Labour Consultancy tackle this week's topics. Browsers have submitted questions to us on a wide range of topics - have a look at some of the letters and the answers provided. For those who missed the first edition, we presented information on new structures, such as the Commission for Conciliation, Mediation and Arbitration (CCMA), workplace forums, new dispute resolution processes and mechanisms, and potential pitfalls in the relationship between employer and employee. PROBATIONARY PERIODS Schedule 8 of the LRA: Code of Good Practice Dismissal - Labour Relations Act - The code of good practice requires that employers and employees treat one another with mutual respect, to ensure just and fair treatment of employees and the efficient operation of the business. Employees should be protected from arbitrary action by employers. Employers are entitled to satisfactory conduct and work performance from their employees. The importance of the new Labour Relations Act cannot be overstated. No more so than in the case of newly hired employees who are placed on a probationary period. Prior to the Act it was possible for the employer and employee to enter into a contract between them where it was agreed that either party may give notice of termination of employment of twenty four hours or some other specified longer period without having to give any specific reason for the decision. The new Act over-rides all contracts, written or verbal, where such contracts impose conditions less favourable to the employee than are specified by the Act. In fact Labour Relations are today defined by BA and AA - before the Act and after the Act! A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job and the time it would take to determine if the employee will be suitable for continued long term employment. A period of one to three months is the usual norm. Longer probationary periods may bring with them added problems if the employer decides to dismiss the employee. Before employing a new employee make sure that the position for which they are being employed is clearly defined and that the employee is fully au fait with the job description. The terms and conditions of employment should be reduced to a written contract. There is an obligation on the applicant when applying for a position to give the true facts of his experience and knowledge with regard to the requirements of the job for which he/she is applying. There is however a responsibility on the employer to properly screen candidates as to their suitability. The perception of an employer's opinion as to the competence required for a particular job may be very different to that of the applicant or for that matter even the perception of another employer in the same situation. In certain situations where particular skills are required for example in - computer programming, typing, welding ..., a practical test given to an applicant may save time and tears in the future. During the probationary period an employee may be fairly dismissed for misconduct, or such reasons which are good, valid and fair. The most common reason is for Incapacity:- poor work performance. NB! During the probationary period the employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. It is essential that an employee should be given the opportunity to state their case, assisted by a trade union representative or fellow employee, if dismissal is being considered by the employer. Following fair and correct procedures in terms of the act the employee may then be dismissed for his inability to meet the required job standards. If it becomes apparent during the probationary period that the employer and the employee are not compatible, for personal but non discriminatory reasons and ensuring all the above criteria have been met and that fair procedures are followed, the employee may be dismissed. Note:- You should follow dismissal procedures set out by the Labour Relations Act and Basic Conditions of Employment Act when dismissing an employee during probation.

DISMISSAL

In last week's edition of Labour Guides, it was discussed that dismissal remains the most important issue in Labour Relations. Whenever an employer terminates the employment of an employee, with the exception of a "fixed period contract" it is a dismissal. To avoid litigation it is essential that any dismissal should be fair. Unfair or automatically unfair dismissals and their resultant consequences must be avoided by employers.

Employers have to accept that with the new Act in force they have a long term responsibility to their employees. Dismissing an employee is not a matter to be taken lightly however serious the circumstances surrounding the reasons for dismissal. Every care must be taken by the employer to ensure that the dismissal is procedurally correct and in terms of the Act.

We now examine various examples of dismissal, some of which are not obvious at first sight.

The meaning of dismissal
The Act states that every employee has the right not to be dismissed, unless the reasons are good, valid and fair. With few exceptions it is expected that employment is for an indefinite period of time and is usually open-ended. The New Act restricts the reasons for dismissal to:-

• Misconduct
• Incapacity
• Employer's operational requirements.

1. Employer has terminated a contract of employment. This may be with or without notice.
2. If in the case of a fixed period contract the employee had fair reasons to believe that the contract would be renewed but that the employer failed to do so.
3. An employee is entitled to maternity leave in terms of the Act and if she returns to work within eight weeks of the birth of her child and her position is no longer available she has been dismissed.
4. If an employer dismisses two or more employees for similar reasons but employs some of them but refuses to employ the others, it may be taken that the others have been dismissed.
5. If an employer makes employment intolerable for an employee to the extent that the employee is forced to terminate his employment it is known as constructive dismissal.

Compensation for unfair dismissal
Note: Compensation is in addition to any other amount which may be due to the employee in terms of the Law and/or their contract.

1. If a dismissal was unfair only because the procedures followed in dismissing the employee were not procedurally correct the compensation will be at the employees rate of remuneration at the time of dismissal, based on the period from the date of dismissal to the date of adjudication or arbitration of the case.
2. If the dismissal was itself unfair the compensation will be not less than in (1) above and not more than the equivalent of 12 months remuneration.
3. If the dismissal was atomically unfair in terms of the Act, compensation may be up to 24 months remuneration.

a) If an employee has worked for four weeks or less the notice period is 24 hours under the existing legislation. When the new bill becomes law this will be one week.

b) For less than one year the notice period is two weeks.

c) If the employee has been continuously employed for one year or more, the notice period is 30 days.

d) Domestic workers who have been employed for longer than 4 weeks, the notice period is one month.