There are many misconceptions about the role and effect of probationary periods in employment contracts. It’s not surprising to hear employers conclude that probation periods pretty much give them carte blanche to dismiss probationers in the formative phase of an employment relationship.

The Labour Relations Act does provides that “Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.

Make no mistake, the Labour Relations Act does indulge employers to some extent during probationary periods, but this relates to dismissal on grounds of poor work performance only when less compelling reasons for such dismissals are required than would be the case after probation.

This indulgence does not however extend to acts of misconduct during probationary period, be they suspected or proved.

It is important to remember that whilst the Labour Relations Act provides for dismissal on grounds of poor work performance on less compelling grounds than would be the case after probation, this only applies to poor work performance, and not misconduct.

In the Labour Court case of the South African Football Association v Ramabulana & others [JR2175/09], this very subject was central theme.

SAFA had applied to the Labour Court to have an earlier CCMA award in favour of the erstwhile employee, awarding him twelve months compensation due to his dismissal which was held to have been unfair, reviewed.

This applicant had been employed as head on a fixed-term employment contract for a period of two years, on a three months probationary period.

According to the applicant, during his third month of probation, he was called to a meeting with senior SAFA management and informed of criminal charges against him regarding the purported  theft of money during a COSAFA tournament.  The applicant denied any knowledge of this, where after he was presented with two options, resign immediately in which case SAFA would not press charges ahead with the criminal charges, or face the consequences of criminal charges being laid against him.

The applicant indicated he would not resign.

The applicant’s probation period was extended to a month. The applicant was arrested during the extended probation period, and released on bail after which he returned to work.

The applicant was dismissed at the end of the extended probation period on grounds of incompatibility (incapacity). This was promised on submissions that the preservation of the applicant’s employment was, in the circumstances, entirely intolerable given that the applicant was custodian of security with the respondent, and the public perceptions which would flow should his permanent employment have been confirmed, would have drawn considerably adverse attention to the respondent.

The Court did not buy this argument, and confirmed that ‘”the reasoning and the conclusion of the commissioner in the arbitration award cannot be faulted”. The court went further and derided SAFA for dismissing the applicant “based on suspicion which was never investigated by it nor did they even have the decency of affording the employee an opportunity of presenting his side of the story”.