Training and capability · · 7 min read · 1,623 words
Probation done properly
By the LabourLink editorial team. Last reviewed 17 October 2026.
The short answer
The 2025 Code of Good Practice: Dismissal expects a probation period set in advance and of reasonable length, reasonable guidance, and representations before you extend or dismiss. Probation disputes go to compulsory con-arb.
The short answer
Probation is a period at the start of employment during which the employer evaluates the employee's performance and suitability before confirming the appointment[1]. It is lawful, it is useful and it is often handled badly. The Code of Good Practice: Dismissal, published in 2025, sets out what fair probation looks like: a period determined in advance and of reasonable duration, reasonable guidance during the period, and an opportunity for the employee to make representations before the employer decides to dismiss or to extend[1].
Probationary employees are still employees. They are protected against unfair dismissal, and disputes about probation dismissals are dealt with through compulsory conciliation and arbitration at the CCMA or a bargaining council[2].
What probation is for
The Code states that the purpose of probation is to give the employer an opportunity to evaluate the employee's performance and suitability for employment before confirming the appointment[1]. It also states that probation should not be used for other purposes, and in particular not to deprive employees of the status of permanent employment[1]. A practice of dismissing employees at the end of probation for reasons unrelated to their performance or suitability, and replacing them with new hires, is inconsistent with the purpose of probation and may constitute an unfair dismissal[1].
Setting the period
The Code says the period should be determined in advance and be of reasonable duration[1]. Its length should be determined with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment[1]. The Code does not set a fixed number of months.
A practical approach:
- Put the probation period in the letter of appointment, with the start and end dates.
- Set the period according to the job. A role with a short learning curve needs a shorter period than a senior role with a long cycle of work.
- Set out what will be assessed: the key outputs, behaviours and standards.
Guiding the employee
During probation, the employer should give the employee reasonable guidance, appropriate to the nature and size of the employer and the job, which may include instruction, training or counselling, so that the employee has an opportunity to render a satisfactory service[1].
A simple review rhythm
- Week one. Agree the role's expectations in writing. Confirm who the employee's supervisor is.
- End of month one. Hold a short review. Note what is going well and what needs to improve, with examples.
- Mid-point. Hold a formal review. If there are concerns, say so clearly, identify support and set a date to review progress.
- Two weeks before the end. Assess whether the standards have been met and whether to confirm, extend or consider not confirming.
Record each review in a short note signed by both parties. If the employee disagrees, record that too.
Deciding at the end
Confirming
If the employee meets the standards, confirm the appointment in writing. Do not let the end date pass silently; a clear confirmation avoids later uncertainty.
Extending
The Code allows the employer to extend probation, but only after giving the employee an opportunity to make representations and considering any representations made[1]. Extend for a clear reason and a defined period, and explain what must improve.
Not confirming
The same requirement applies to a decision to dismiss: the employer may only decide to dismiss after giving the employee the opportunity to make representations and considering them[1]. Give the employee the assessment, explain the concerns and allow them to respond. The employee may be assisted, in line with your disciplinary or performance procedure.
The Code also says that a person deciding the fairness of a dismissal related to conduct or capacity during or at the end of probation ought to accept reasons that may be less compelling than would be required after probation, taking into account the purpose of probation[1]. That is a meaningful difference, but it is not a licence to dismiss without reasons or without process.
After probation
Once probation ends, the standards change. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has given appropriate evaluation, instruction, training, guidance or counselling and, after a reasonable period for improvement, the employee continues to perform unsatisfactorily[1]. Before dismissing, the employer should give the employee an opportunity to respond to the allegations of unsatisfactory performance[1].
Disputes about probation
If a probationary employee refers a dispute about a dismissal relating to probation, or an unfair labour practice relating to probation, the commissioner must conduct conciliation and, if it fails, arbitration must begin immediately[2]. Under the CCMA Rules, the usual right to object to con-arb does not apply in these disputes[3]. In practice, this means the employer must be ready to argue the merits on the day of conciliation. Bring the appointment letter, the review notes, any training records and the outcome letter.
Common mistakes
- No end date in the appointment letter.
- No reviews until the last week.
- Extending probation repeatedly without representations[1].
- Dismissing at the end of probation without hearing the employee[1].
- Using probation as a rolling trial to avoid permanent appointments[1].
- Arriving at the CCMA without the documents, because no one expected con-arb[2][3].
A worked example
A medical practice appoints a receptionist on six months' probation, with clearly defined duties: booking, billing and front-desk service. At the end of the first month, the practice manager notes billing errors and arranges a training session with the billing software provider. At the mid-point review, the errors have reduced but not disappeared, and the manager sets a target and a date. Two weeks before the end, the errors persist at a level that causes medical aid rejections. The manager meets the receptionist, explains the concern with examples, gives her a copy of the review notes and invites her to respond. She explains that she has been covering for an absent colleague and asks for more time. The practice considers the explanation, accepts it in part, and extends probation by six weeks with a written plan[1]. At the end of the extension, her billing is accurate and she is confirmed.
Probation and conduct
Probation is mainly about performance and suitability, but conduct issues can arise too. If a probationary employee commits misconduct, the ordinary principles of fair discipline apply: the employee should be told of the allegations, given a reasonable opportunity to respond and allowed assistance[1]. The Code's guidance that less compelling reasons may be accepted during probation applies to dismissals relating to conduct or capacity, including poor performance[1], so a decision maker may be more willing to accept a dismissal of a probationer than of a long-serving employee. The process still matters.
Writing the appointment letter
A good appointment letter does most of the work of fair probation before the employee's first day. It should state:
- The length of the probationary period and its start and end dates[1].
- The standards against which the employee will be assessed, or where to find them.
- Who will supervise and review the employee.
- That reviews will take place during the period, and roughly when.
- That the employer may extend the period or decide not to confirm the appointment, after hearing the employee's representations[1].
Avoid open-ended wording such as "probation until further notice". The Code expects the period to be determined in advance[1].
Extensions done properly
An extension is a decision about the employee and should be treated as one. Before extending, meet the employee, explain the concerns and invite a response[1]. If you extend, put the reason, the new end date and the improvement plan in writing. Avoid repeated extensions. If the standards are still not met at the end of a reasonable extension, the decision is whether to confirm or not, and the employee should again be heard first.
Managers as the weak point
Most probation problems start with a busy manager who does not hold reviews. The employer's process may be perfect on paper, but if the supervisor never tells the employee about the concerns, the guidance and representations the Code describes have not happened[1]. Build probation reviews into managers' calendars, and have HR check that they took place.
Small employers
The Code says that small businesses cannot be expected to comply with obligations that are not practical or feasible for them[1]. A small employer does not need a formal review panel. It does need to tell the employee what is expected, say clearly when something is not working and listen before deciding.
Probation in fixed-term and senior roles
Probation is common in permanent appointments, but some employers also use it in long fixed-term contracts and senior roles. The same principles apply: a defined period, reasonable guidance and the chance to make representations[1]. For senior roles, agree the measures of success at the start, because the work is harder to assess in a few months. In its guidance on poor performance after probation, the Code accepts that managers and senior employees may be expected to judge whether their own performance is adequate[1]. During probation, the employer should still give reasonable guidance, record its concerns and hear the response before deciding[1].
Key points
- Probation exists to assess performance and suitability, not to avoid permanent appointments[1].
- Set a reasonable period in advance and give reasonable guidance[1].
- Hear the employee before extending or dismissing[1].
- Expect compulsory con-arb if a dispute is referred[2][3].
- After probation, poor performance dismissals require evaluation, support and time to improve[1].
When to get specialist help
A consultant can design a probation policy, write appointment letters, train managers on reviews and prepare for confirmation or non-confirmation meetings. If a dispute is referred, book a LabourLink consultation immediately, because con-arb means the case may be argued on the first day[2]. If the employee alleges an automatically unfair reason, such as pregnancy or discrimination[2], get help at once.