Avoiding Unfair Dismissal During Probation | Tips for Employees

Avoiding unfair dismissal during probation in South Africa requires the employee to understand that probationers are fully covered by the Labour Relations Act 66 of 1995 — the employer must still prove a substantively fair reason for dismissal (typically incapacity to meet agreed performance standards) and follow a procedurally fair process, including evaluation, guidance, and an opportunity to improve, before letting the employee go. The Code of Good Practice on Dismissals (Schedule 8 to the LRA) treats item 11 as the controlling standard for probation: the period should be agreed in advance, generally not exceed six months unless justified, and the employer should give a probationer reasonable evaluation, instruction, guidance, counselling, or training before any dismissal. If a probationer is dismissed, they have 30 days from the date of dismissal to refer an unfair-dismissal dispute to the CCMA under section 191(1) of the LRA, where the employer bears the onus of proving both substantive and procedural fairness.

What Counts as “Unfair Dismissal” During Probation Under South African Law

Probationers are employees under the Labour Relations Act 66 of 1995 (LRA) — there is no “probation exemption” from the unfair-dismissal regime. The LRA defines dismissal broadly in section 186, and section 188(1) sets the fairness test: any dismissal must be for a fair reason (conduct, capacity, or operational requirements) and effected in accordance with a fair procedure.

For a probationer, the substantive reason is almost always incapacity — a failure to meet the performance standards set for the role. The procedural side is where most probation dismissals collapse: the employer skips the evaluation, gives no guidance, and offers no meaningful chance to improve before terminating. Both limbs are required. A dismissal with a fair reason but no fair procedure is still unfair.

Who carries the onus at the CCMA

Under section 192 of the LRA, the employer bears the onus of proving that the dismissal was both substantively and procedurally fair. The employee does not have to prove the dismissal was unfair — they have to show that a dismissal happened, and the employer has to defend it. The CCMA and the Labour Court apply the “band of reasonableness” test: was the employer’s decision to dismiss within a range of reasonable responses to the employee’s performance? Outliers — dismissals no reasonable employer would have made — fall outside the band and are unfair.

The Probation Standards in Schedule 8 (Item 11) You Should Know

Item 11 of Schedule 8 to the LRA is the controlling standard for probation. The Code of Good Practice on Dismissals spells out what an employer must do before a probation dismissal can be fair. The following points are the ones most often missed in practice:

• Probation period must be agreed in advance — written into the employment contract before the employee starts work, not imposed or extended unilaterally after the fact.
• Reasonable duration — the probation period should generally not exceed six months, unless the role justifies a longer period.
• Performance standards must be communicated — the employee must know what they are being measured against, in measurable terms, before the evaluation begins.
• Evaluation, guidance, counselling, or training must be provided — the employer cannot simply dismiss without first giving the employee a genuine chance to improve.
• Prior notice of dismissal is contemplated — the employer should warn the probationer that dismissal is being considered before acting.
• Incidents during probation may be weighed differently — for less serious misconduct, item 3 of the Code permits the employer to decide not to dismiss, taking the probationary status of the employee into account.

Pre-Probation: How to Set Yourself Up to Avoid Dismissal

Most of the work that protects a probationer happens before the first day. The employment contract is your first line of defence — it should leave no ambiguity about the probation period, the performance criteria, the evaluation process, and what happens at the end of probation (confirmation, extension, or dismissal). If the contract is silent on any of these, ask for written clarification before signing.

1. Read the contract carefully before signing. Confirm the probation period, performance criteria, evaluation process, and what happens at the end of probation.
2. Ask for written performance standards if they are not in the contract. Measurable KPIs, role expectations, and the criteria for “passing” probation reduce the room for the employer to later assert you did not meet standards.
3. Confirm who you report to and what the evaluation cadence will be. Monthly reviews are common but not always formal — get the cadence in writing.
4. Keep a copy of the offer letter, contract, and any induction materials in your own records. Do not rely on the employer to retain documents on your behalf.
5. Clarify whether your probation period counts toward notice period or other employment benefits if you are later confirmed.

During Probation: Practical Steps If You Are Worried About Dismissal

Once probation is underway, the focus shifts from contractual clarity to documentary record. If a dispute ends up at the CCMA, the arbitrator will read the employer’s record first, then yours — the documentation trail is what carries the case.

• Request a structured mid-probation review in writing. Formalising the feedback loop contradicts any later claim of “no evaluation” on the employer’s part.
• Document every evaluation meeting, feedback email, performance note, or warning. These become evidence if you are dismissed.
• If feedback is vague or contradictory, ask for written clarification. This protects you if the employer later claims you did not meet standards.
• If you are struggling, raise it early with your manager. Offering to take up additional training or coaching is documented evidence that you engaged with the process.
• If your employer skips evaluation entirely and moves straight to dismissal, flag the defect immediately in writing and note it for a CCMA referral.

Spotting the Procedural Defects That Make a Probation Dismissal Unfair

Procedural defects are the most common reason a probation dismissal is found unfair at the CCMA. The table below summarises the defects that recur in arbitration awards.

Defect	What it looks like in practice
No agreed performance standards	The employer never told you what you were being measured against
No evaluation, guidance, or counselling	You were dismissed without any documented feedback during the probation period
Inadequate notice of the dismissal decision	You were ambushed on the day with no warning that dismissal was being considered
No opportunity to respond (misconduct cases)	You were not given a chance to explain your side of the story
Probation longer than six months without justification	Extended probation is challenged where there is no role-specific reason for it
Probation imposed after employment started	The term was added to the contract after you had already begun work

If You Are Dismissed: The 30-Day CCMA Referral Window

Under section 191(1) of the LRA, an unfair-dismissal dispute must be referred to the CCMA within 30 days of the date of dismissal. The 30-day clock starts on the date of dismissal — the last day worked where dismissal takes effect immediately, or the date of the termination notice.

• Late referrals are possible but require a condonation application showing good cause for the delay and reasonable prospects of success. Condonation is not automatic and is decided on the balance of factors including the explanation for the delay, the prospects of success, the prejudice to the employer, and the importance of finality.
• The CCMA will first attempt conciliation. If conciliation does not resolve the dispute, the matter proceeds to arbitration.
• At arbitration, the employer must prove the dismissal was substantively and procedurally fair. The employee does not have to prove the dismissal was unfair.

CCMA Remedies If Your Dismissal Is Found Unfair

When the CCMA finds a dismissal unfair, the remedies available are set out in section 194 of the LRA. Reinstatement and re-employment are the primary remedies; compensation is the alternative where reinstatement is not practicable.

Remedy	Scope / Cap
Reinstatement	Re-employ the employee in the same or a comparable position on the same terms
Re-employment	Re-employ in a different but suitable position
Compensation (procedurally unfair)	Up to 12 months’ remuneration
Compensation (automatically unfair dismissal)	Up to 24 months’ remuneration

Building a CCMA Case: What Evidence Matters Most

Evidence is what converts a procedural defect into a winning case. The categories the CCMA arbitrators look for are well-established:

• The employment contract and any signed probation terms
• Any written performance standards, KPIs, or role descriptions
• Email feedback, performance reviews, evaluation notes, and warnings
• Meeting notes or minutes from mid-probation reviews
• The employer’s letter of dismissal or termination notice
• Any contemporaneous notes you kept about feedback conversations
• Correspondence showing you asked for clarification, training, or guidance and were refused or ignored
• Evidence of your actual performance (work outputs, sales figures, project completion) to rebut claims of incapacity

Common Mistakes That Undermine an Unfair-Dismissal Case

Some of the most avoidable losses at the CCMA arise from tactical errors, not from the underlying merits of the case.

• Waiting too long to refer. The 30-day window is strict, and condonation is discretionary — acting late without explanation is the single most common reason cases are dismissed on procedural grounds.
• Relying on verbal feedback and verbal promises you cannot prove. Always confirm feedback in writing.
• Responding to a dismissal letter with resignation before getting legal advice. This can be argued as acceptance of the dismissal.
• Not asking for written reasons for dismissal at the time it happens.
• Failing to attend the CCMA conciliation or arbitration. Non-attendance can result in the matter being closed.

When to Get Legal Help and What an Attorney Can Do

Labour-law attorneys add value at three clear points: before the dispute arises (contract review), at referral stage (drafting the CCMA referral and condonation application if needed), and at arbitration (representation and evidence preparation). Specialisation matters here — the LRA and CCMA practice have their own procedural rules, and the difference between appearing in person and being represented often comes down to the quality of the documentary record.

Labour-law attorneys typically charge a fixed fee for the referral stage and an additional fee for arbitration representation. Costs are sometimes recoverable from the employer at arbitration in limited circumstances. Acting quickly is the single biggest determinant of outcome — advice within the 30-day window is far more useful than advice after it has closed.

Burger Huyser Attorneys’ Labour Law practice is supported by specialist consultant Marius Ferreira, and the firm’s general litigation bench — under directors Anna-Mi Nel, Nadine Roesch-Prinsloo, and Herman Bonnet — handles CCMA referrals, condonation applications, and Labour Court matters through offices across Gauteng.

Avoiding Unfair Dismissal During Probation in Gauteng: CCMA Referrals and the Labour Court’s Reach

The first practical step after a probation dismissal in Gauteng is referring the dispute to the CCMA, not the Labour Court. The CCMA is the entry forum for unfair-dismissal disputes under section 191 of the LRA, and conciliation will normally be scheduled within 30 days of referral. Gauteng-based matters refer to the CCMA’s Johannesburg regional office (for the Johannesburg-side catchment) or the Tshwane regional office (for northern Gauteng, including Centurion, Pretoria North, and surrounds). Unrepresented employees can also approach the CCMA’s national toll-free line to be directed to the correct regional office. The Labour Court only enters the picture at the review stage of a CCMA arbitration award, or for certain categories of dispute — it is not the first port of call for an unfair-dismissal referral.

Burger Huyser Attorneys fields CCMA disputes and labour-court matters through its Labour Law practice, with offices across Gauteng — Linden/Randburg (head office, 011 888 0246), Centurion (012 644 4990), and the other regional branches — providing the practical intake points for a dismissed probationer who needs to file a CCMA referral within the 30-day window. The Centurion office carries an after-hours line (061 516 7117) for urgent same-week instructions.

Frequently Asked Questions

Can my employer dismiss me during probation without any reason?

No. Under the Labour Relations Act 66 of 1995, probationers are fully covered employees and the employer must prove a substantively fair reason for dismissal (typically incapacity to meet performance standards) and follow a procedurally fair process. Schedule 8 item 11 of the Code of Good Practice on Dismissals sets the standards: the probation period must be agreed in advance, generally not exceed six months unless justified, and the employer must give the employee reasonable evaluation, instruction, guidance, counselling, or training before dismissing.

How long can my employer put me on probation?

Schedule 8 item 11 to the LRA states that a probation period should generally not exceed six months, unless there is a justification for a longer period tied to the complexity of the role. Longer probation periods are not automatically invalid, but they are scrutinised if challenged — an employee dismissed after a 12-month probation without role-specific justification has a stronger procedural-fairness argument.

Do I have to be given warnings during probation?

Not in the formal sense that applies to fully confirmed employees. However, Schedule 8 item 11 requires the employer to give reasonable evaluation, guidance, counselling, or training, and to give the probationer notice that dismissal is being contemplated. Dismissing without any prior feedback or warning is a procedural-fairness defect.

How long do I have to refer an unfair-dismissal dispute to the CCMA?

30 days from the date of dismissal, under section 191(1) of the LRA. Late referrals are possible but require a condonation application showing good cause and reasonable prospects of success — condonation is discretionary and not automatic.

What can I claim at the CCMA if my dismissal is found to be unfair?

The CCMA can order reinstatement, re-employment, or compensation. Compensation is capped at 12 months’ remuneration for procedurally unfair dismissals, and up to 24 months for automatically unfair dismissals (such as those based on discrimination or whistleblowing).

Do I need a lawyer for a CCMA arbitration?

Not strictly — you may represent yourself. However, given the procedural complexity and the requirement that you prepare your own evidence, witness statements, and arguments, most employees instruct a labour-law attorney for the arbitration stage. A labour attorney can also advise on the merits before the 30-day window expires.

Need help with a probation dismissal? If you have been dismissed during probation and want to assess whether the dismissal was unfair, contact Burger Huyser Attorneys’ Labour Law practice through the head office in Linden, Randburg (011 888 0246) or the Centurion branch (012 644 4990, after-hours 061 516 7117). The firm fields CCMA referrals, condonation applications for late filings, and Labour Court matters through Marius Ferreira and the firm’s general litigation bench, with offices across Gauteng for intake. Initial consultations can be booked at any of the firm’s branches; bring your employment contract, probation terms, any written performance feedback, and your dismissal letter so the firm can advise on merits before the 30-day CCMA referral window closes. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified — “Top Rated Law Firm in South Africa”).