Probation periods can be a source of confusion and stress for both employers and employees. Are you protected during probation? Can you be fired without warning? What rights apply, and what obligations do both sides have? In South Africa, probation is regulated under Item 8 of the Code of Good Practice on Dismissal (Schedule 8 of the Labour Relations Act) to ensure fairness, clarity, and consistency – regardless of whether you’re just starting a job or managing someone who is.
Although probation periods give employers the opportunity to assess new hires, they are not a free pass to dismiss employees without following proper procedure. The September 2025 updated Code significantly expanded the grounds for probation-related dismissals beyond just work performance to include suitability factors like workplace incompatibility, adaptability, and cultural fit, but critically maintains that substantive and procedural fairness remains essential – meaning dismissals without evaluation, training, feedback, and an opportunity for the employee to respond will be found unfair at the CCMA regardless of whether performance targets were met.
This guide unpacks how probation works in South Africa, what the Labour Relations Act and updated Code say, and how to navigate the process with confidence – whether you’re an employer or employee.
This article provides general information only and should not be considered legal advice.
Key takeaways
- Probation allows employers to evaluate new employees before confirming permanent appointment, typically lasting 3 months but can be extended with agreement and valid reasons.
- Employees on probation still have full protection under labour law and cannot be dismissed arbitrarily – procedural and substantive fairness under Section 188 of the LRA must be upheld.
- The September 2025 Code expanded probation grounds beyond performance to include suitability factors like workplace incompatibility, adaptability, and cultural fit, but employers must still provide training, support, and regular feedback.
- Dismissing an employee during or after probation requires valid reasons, proper evaluation, counselling, and a fair process where the employee can state their case with representation.
- Employees can challenge unfair dismissal at the CCMA within 30 days, and probation disputes are scheduled for compulsory con-arb hearings where less formal procedures apply but fairness principles remain mandatory.
What is probation in South African employment law
Probation is a defined period at the start of employment during which the employer assesses whether to confirm the employee’s permanent appointment. Item 8(1) of the Code of Good Practice on Dismissal states that an employer may require a newly hired employee to serve a period of probation, and the purpose of probation is to give the employer an opportunity to evaluate the employee’s performance and suitability before confirming the appointment.
The September 2025 updated Code introduced significant changes to probation. Historically, probation focused narrowly on work performance or competency. The new Code broadens the test to include “suitability,” which encompasses factors such as workplace incompatibility—where personality clashes or behavioural issues create disharmony with colleagues or management; adaptability – the employee’s ability to integrate into the workplace culture, follow procedures, and respond to feedback; and alignment with workplace values – though employers must be careful that “cultural fit” assessments are objective and do not mask discrimination.
Probation periods are typically between one and three months but may be extended if there’s a valid reason – such as insufficient time to assess performance due to the employee’s absence, or the employee showing improvement but needing more time to meet standards – provided the employee agrees and it’s recorded in writing. Item 8(1)(d) requires that the probation period be determined in advance and be of reasonable duration, determined with reference to the nature of the job and the time it takes to determine suitability for continued employment.
Contrary to common belief, probation doesn’t mean fewer rights for employees. Section 188 of the Labour Relations Act and the Code of Good Practice still apply fully, which means dismissal during or after probation must be substantively and procedurally fair. Item 8(1)(c) explicitly states that probation should not be used for purposes not contemplated by the Code to deprive employees of the status of permanent employment.
What the law says about probation
The Labour Relations Act 66 of 1995 and the Code of Good Practice: Dismissal (Schedule 8, particularly Item 8) lay the legal foundation for how probation must be managed. The Code emphasises mutual respect between employers and employees, placing a premium on both employment justice and efficient business operations.
Employers must clearly state in the employment contract that the employee is being appointed on probation, including the duration. A sample clause might state: “The employee is appointed for a probation period of three months. The employer shall be entitled to terminate this contract before or at the expiration of the probation period due to the employee’s unsatisfactory performance, incapacity, or misconduct, or because the employee is not suitable for continued employment. The employer undertakes to follow all relevant procedures and guidelines as set out in the schedules to the Labour Relations Act, 1995, as amended.”
Probation does not waive employee rights. Item 8(1) states that dismissals during probation must be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. The September 2025 Code reaffirms this, emphasising that probation does not affect the employee’s protection against unfair dismissal.
The purpose of probation is legitimate evaluation, not to avoid normal hiring standards, delay job security unfairly, or serve as a rolling trial period to dismiss employees repeatedly and replace them with new hires. Item 8(1)(c) states that the practice of dismissing employees who complete their probation periods and replacing them with newly hired employees is not consistent with the purpose of probation and constitutes an unfair labour practice.
Employer obligations during probation
Item 8(1)(e) requires employers to assess the employee’s performance throughout the probation period and give the employee reasonable evaluation, instruction, training, guidance, or counselling to allow them to render satisfactory service. This is not optional – it’s a mandatory requirement for fair dismissal.
If you determine performance or suitability is below standard, Item 8(1)(f) requires you to advise the employee of any aspects in which their performance is deficient and inform them of the improvement expected and the time allowed for improvement. This means continuous feedback from day one, not sudden criticism at the end of probation.
Employers must monitor probation actively through regular check-ins (weekly or bi-weekly for the first month, then monthly), documented performance reviews noting strengths, areas for improvement, and specific expectations, training and support tailored to identified gaps, and clear communication about whether the employee is on track or at risk of dismissal.
The September 2025 Code emphasises that dismissal should be a last resort. Before dismissing for unsatisfactory probation, employers should consider alternatives such as extending the probation period (with agreement) to allow more time for improvement, adjusting the role or responsibilities if the employee shows aptitude elsewhere, or offering additional training or mentorship.
Dismissal during or after probation
Dismissing a probationary employee is not automatic or at-will. Item 8 requires that if the employer determines after evaluation that the employee should not be retained, the employee must be given an opportunity to state their case in response and to be assisted by a trade union representative or fellow employee.
The CCMA information sheet on probation clarifies that whilst less onerous requirements apply, employers are not required to present as compelling reasons for dismissal as would be the case with permanently employed staff. However, basic procedural fairness remains mandatory: you must notify the employee of the concerns, provide an opportunity to respond in a meeting, consider their explanation and any mitigating factors, and document the decision and reasons.
It is not necessary to hold a formal disciplinary inquiry with prosecutors and witnesses. A fair meeting where the employer explains the performance or suitability concerns, the employee responds and explains their perspective or personal circumstances, and the employer considers all factors before deciding is sufficient.
Common reasons for dismissal during probation include inability to perform core job functions despite training and support, persistent errors or quality issues not improving with feedback, workplace incompatibility causing serious disruption to team dynamics (under the expanded 2025 Code), lack of adaptability – unable to integrate into workplace culture or follow basic procedures, or misconduct during probation (handled under normal disciplinary procedures, not probation-specific rules).
Extending probation periods
An employer can extend probation, but only for valid reasons such as the employee showing improvement and needing more time to consolidate skills, insufficient assessment time due to the employee’s sick leave or the employer’s operational disruptions, or complex roles requiring longer evaluation periods. The extension must be discussed with the employee, agreed in writing, and have a clear, justifiable reason documented.
Importantly, an employee can decline the extension. If they refuse, the employer must either confirm the appointment, dismiss them following proper procedure, or negotiate a mutually acceptable alternative. Unilateral extensions or endless “rolling” probation periods are prohibited and constitute unfair labour practices challengeable at the CCMA.
Dispute resolution and CCMA processes
An employee may refer an unfair labour practice dispute concerning an act or omission relating to probation to the CCMA or relevant bargaining council within 90 days of the act or omission. Where a probationary employee has been dismissed, the dispute may be referred to the CCMA within 30 days of the dismissal date or the date of the outcome of an appeal hearing.
Unfair labour practice or unfair dismissal disputes relating to probation are scheduled for compulsory con-arb (conciliation-arbitration) hearings. If conciliation fails, the matter proceeds immediately to arbitration before the same commissioner, streamlining the process.
At arbitration, the employer must prove it provided evaluation, training, guidance, and feedback; gave the employee notice of deficiencies and time to improve; followed a fair process including an opportunity for the employee to respond; and had a valid reason related to performance, suitability, or other fair grounds. If the employer cannot prove these elements, the dismissal will be found unfair and remedies may include reinstatement (rare in probation cases) or compensation of up to 12 months’ remuneration.
Who should avoid this and safety notes
For employers
Avoid using probation to bypass fair hiring or dismissal standards. Probation is for genuine evaluation, not a loophole to avoid labour law protections or a convenient way to get rid of employees you should never have hired.
Do not make probation indefinite. Clearly define duration upfront, confirm completion in writing, and issue permanent appointment letters promptly. Leaving employees in perpetual probation limbo creates unfair labour practice risk.
Never surprise employees with performance issues late into probation. If an employee reaches month two without any negative feedback and is then told they’re failing, this demonstrates procedural unfairness. Address concerns immediately and document everything.
Avoid using “cultural fit” or “incompatibility” as pretexts for discrimination. The expanded 2025 Code allows suitability assessments, but these must be objective, documented, and not masks for prohibited discrimination based on race, gender, disability, or other protected grounds.
For employees
Do not ignore performance concerns or feedback during probation. If your manager raises issues, address them proactively, ask for specific examples and support, and keep written records of all discussions and undertakings.
Avoid assuming probation means you can be dismissed without reason or recourse. You have full labour law protection. If dismissed unfairly, you can challenge at the CCMA within 30 days.
If your probation is extended, request the reason in writing, clarity on what improvement is expected, confirmation of the new end date, and any additional training or support that will be provided. If the extension seems arbitrary or indefinite, seek advice—it may be challengeable as an unfair labour practice.
FAQ: How does probation work in South Africa?
Is probation mandatory for all new employees?
No. Probation is optional and must be agreed upon and recorded in the employment contract. Item 8 gives employers the right to require probation but doesn’t mandate it. If not included in the contract, the employee is permanent from day one.
Can I be fired without warning during probation?
No. Employers must provide evaluation, feedback, and notice of deficiencies; give you time to improve; allow you to state your case with representation; and document valid reasons for dismissal. Dismissals without these elements are procedurally unfair.
How long can probation last in South Africa?
Typically three months for most roles, though complex or senior positions may justify longer periods (up to six months). The period must be “reasonable” given the job’s nature and the time needed to assess suitability. It can be extended with your written agreement and valid reasons.
Can I go to the CCMA if I’m dismissed during probation?
Yes. Probationary employees have full protection against unfair dismissal under Section 188 of the LRA. You can refer disputes to the CCMA within 30 days of dismissal. Probation cases are heard via compulsory con-arb for faster resolution.
What if my employer keeps extending my probation indefinitely?
Repeated or vague extensions without valid reasons or your written agreement constitute an unfair labour practice. You can refuse extensions, request reasons in writing, or refer the matter to the CCMA within 90 days as an unfair labour practice relating to probation.
Sources
- Labour Relations Act 66 of 1995: Section 188 on fair dismissal requirements
- Code of Good Practice: Dismissal, Schedule 8 of the LRA, Item 8 on probation (as updated September 2025)
- CCMA: Probation information sheet on dispute resolution and con-arb hearings
- Labour Guide South Africa: Probation overview and best practices
- Global Policy Watch: South Africa’s new employment law framework for dismissals (September 2025 Code updates)
