Termination of Employment During Probation in South Africa

Terminating employment during probation in South Africa is a dismissal under the Labour Relations Act 66 of 1995, not a separate, lighter regime — the employer must still prove a valid reason (typically incapacity or incompatibility) and follow a fair procedure based on the Code of Good Practice on Dismissal (Schedule 8, Item 8). At a minimum, the employer must assess the employee against the criteria set at the start of probation, give the employee prior warning of the concerns and an opportunity to respond, and consider alternatives to dismissal before issuing a notice of termination. The dismissed employee has 30 days from the date of dismissal to refer an unfair-dismissal dispute to the CCMA (extended only where the CCMA condones the late referral); compensation is capped at 12 months’ remuneration in most cases, and reinstatement is the primary remedy if the dismissal is found substantively or procedurally unfair.

This guide is written for the small and medium-sized employer who needs a defensible, end-to-end procedure — and for the probationer who wants to understand whether the dismissal they received was fair. It joins the substantive test, the procedural steps, the documentation, the final-monies calculation, and the CCMA dispute path into one procedural playbook, then layers the legal citations that shorter guides often leave out.

The Legal Framework: Why Probation Is Still a Dismissal Under the LRA

Probation is not a legal free pass. The Labour Relations Act 66 of 1995 (LRA) applies to every employee in South Africa, and the unfair-dismissal protection in Chapter VIII applies during probation exactly as it does after confirmation.

• Section 186(1)(a) of the LRA defines “dismissal” as the termination of a contract of employment by the employer, with or without notice. A termination during probation is a dismissal unless the employee is on a fixed-term contract that simply expires on its own terms.
• Section 188 of the LRA gives every dismissed employee the right not to be unfairly dismissed. The employer must show a fair reason (conduct, capacity, or operational requirements) and a fair procedure.
• Item 8 of the Code of Good Practice on Dismissal (Schedule 8 of the LRA) sets out the additional considerations that apply specifically during probation.

The Code of Good Practice on Dismissal is not a binding statute on its own, but Schedule 8 forms part of the LRA itself, and commissioners at the CCMA apply it when assessing whether a dismissal was substantively and procedurally fair.

Setting Up a Probation Period That Stands Up Later

A fair probation termination is built long before the dismissal meeting. Three things must already be in place when the employee starts work.

1. The probation period must be agreed in advance in the employment contract. An employer cannot impose a probation period after the employee has already started work. The Basic Conditions of Employment Act 75 of 1997 (BCEA) requires written particulars of employment on or before the first day of work (section 29); a probation clause that is added afterwards is unenforceable.
2. The probation period must be reasonable. There is no statutory maximum, but Schedule 8 Item 8(2) requires the period to be appropriate to the nature of the job and the time needed to assess the employee. An undefined or excessively long probation period is itself a substantive-fairness risk.
3. The performance and suitability criteria must be identified, written down, and communicated at the start of probation. The criteria are the yardstick against which the eventual assessment will be measured; without them, the employer has no objective basis for termination.

A probation period is not the same as a “trial period” in a fixed-term contract. Section 198B of the LRA governs fixed-term employment and “trial periods” embedded inside it — a separate statutory regime with its own evidentiary rules. Conflating the two is a common drafting error that can backfire when the dismissal is challenged.

Substantive Fairness: When the Reason for Termination Is Valid

Substantive fairness asks whether the employer had a valid reason to terminate at all. During probation, two reasons dominate.

Reason	What the employer must show
Incapacity (typically poor performance)	The standard was made clear; the employee fell short of that standard; the assessment was reasonable.
Incompatibility (personality, culture, conduct-based)	The relationship of trust cannot reasonably continue; the assessment was reasonable, not just a manager’s subjective dislike.

The fairness test is calibrated to the probation context — the employer does not have to prove the employee’s conduct would justify dismissal of a fully-tenured employee — but it is not absent. A vague “this isn’t working out” is not a substantive reason; it is the kind of evidence a CCMA commissioner will treat as substantively unfair.

Procedural Fairness: The Minimum Process Required

Procedural fairness asks whether the employee was given a fair chance to answer the case against them. For a probation termination, that means a prior enquiry or hearing with the following minimum steps:

1. Inform the employee in writing of the concerns and the shortcomings identified against the agreed criteria.
2. Give the employee an opportunity to respond, ask questions, and present mitigating factors.
3. Consider the employee’s response before a decision is made.
4. Communicate the decision in writing, with reasons, the effective date, and the notice period (or pay in lieu).

A one-sided manager’s decision (“we don’t think this is working out”) is procedurally unfair. Even where the substantive reason is sound, a procedural defect on its own is enough to make the dismissal unfair. The procedural step cannot be compressed or skipped simply because the employee is on probation — this is the single most common SME mistake Burger Huyser Attorneys’ Labour Law practice sees in incoming CCMA files.

Documentation That Protects the Employer Later

The CCMA assesses fairness on the file the employer brings to the arbitration, not on the story the manager tells in the room. A contemporaneous probation file should contain:

• The signed employment contract and the probation clause.
• The written performance and suitability criteria communicated at the start of probation, ideally signed by the employee.
• Regular written feedback — interim reviews as well as the final review.
• Minutes or notes of any warning, counselling, or assessment sessions.
• The employee’s written response to the concerns, or a recorded note of refusal to engage.
• The final termination letter, including the effective date, the reason, and the notice period.

Documentation created only after the dismissal is of little evidentiary value at the CCMA — the arbitrator weights contemporaneous records over reconstructed accounts.

Notice Period, Pay, and Final Monies

Probation does not displace the BCEA’s notice and final-monies entitlements. On termination the employer must:

Item	Source	Detail
Notice period	Contract or section 37 BCEA (whichever is longer)	1 week (< 6 months’ service) · 2 weeks (6 months – 1 year) · 4 weeks (≥ 1 year). Agricultural employees have a different minimum.
Pay in lieu of notice	Contract or BCEA	The employer may pay out the notice period rather than require the employee to work it.
Outstanding salary	Contract	Up to and including the last day worked.
Accrued leave	BCEA section 40	Paid out as a pay-out in lieu of untaken leave at the rate of the employee’s ordinary daily pay.
Other contractual amounts	Contract	Pro-rated bonus, commission, or any other contractual entitlement earned up to the last day.
Tax certificate	SARS	IT3(a) reflecting the remuneration paid in the tax year.
Certificate of service	BCEA section 41	Issued on request.

Severance pay under section 41 of the BCEA is not triggered by a probation termination for incapacity or incompatibility — it applies to dismissals for operational requirements (retrenchment). A probationer terminated for poor performance or incompatibility is therefore not entitled to severance, but is still entitled to notice, leave pay-out, and outstanding salary.

Resolving a Dispute: The CCMA and the Labour Court

A dismissed probationer who believes the dismissal was unfair can refer the dispute to the CCMA within 30 days of the date of dismissal under section 191 of the LRA. Late referrals are accepted only if the CCMA is satisfied that the referral was made in good faith, the employee has a reasonable explanation, and condonation is warranted.

The CCMA’s regional footprint determines the venue. Gauteng-based employers and employees will typically have their conciliation and arbitration at the regional office that covers the area where the employee was based, allocated on the parties’ address records. The CCMA’s regional offices serving Gauteng are Johannesburg, Ekurhuleni (with a satellite in Springs), Tshwane (Pretoria), and the West Rand. The Gauteng Division of the Labour Court in Johannesburg hears reviews and appeals of CCMA arbitration awards from this region. The Department of Employment and Labour’s inspectorate arm and its regional offices in Johannesburg, Pretoria, and Germiston remain the enforcement route for BCEA-based complaints (such as unpaid notice or unrecovered leave), distinct from the CCMA’s unfair-dismissal jurisdiction.

Remedies available under section 193 of the LRA for an unfair dismissal are:

• Reinstatement (or re-employment) — the primary remedy, awarded unless the employee no longer wants it or it is not reasonably practical.
• Compensation — capped at 12 months’ remuneration in most cases; up to 24 months in automatic-unfair-dismissal cases (which are not typically the probation scenario). Compensation is calculated on actual remuneration at the date of dismissal (not future loss), and the CCMA may reduce it for contributory fault.

The CCMA referral form (Form 7.11), the conciliation and arbitration process, and the published commissioner guidelines are all available on the CCMA’s portal.

Comparison Table: Probation Termination vs Other Dismissal Routes

Aspect	Probation Termination	Disciplinary Dismissal (Conduct)	Incapacity (Ill Health / Performance)	Operational Requirements (Section 189)
Trigger	Failed assessment during probation	Misconduct after warnings	Inability to perform due to ill health or sustained performance issues	Employer restructuring, layoff, or retrenchment
LRA Test	Substantive + procedural fairness under Schedule 8 Item 8	Substantive + procedural fairness, with progressive warnings	Substantive + procedural fairness, with adaptation and counselling	Substantive + procedural fairness, with consultation
Minimum Procedure	Written notice of concerns, opportunity to respond, written decision	Counselling, written warnings, disciplinary enquiry, written decision	Assessment, possible alternative duties, consultation, written decision	Section 189 consultation, retrenchment selection, severance pay
Likely Forum (if disputed)	CCMA	CCMA	CCMA	CCMA or Labour Court (section 189A)
Notice Pay	Per contract or BCEA	Per contract or BCEA	Per contract or BCEA	Pay in lieu of notice typically applies; severance under section 41 BCEA

Common Mistakes That Turn a Fair Termination Into an Unfair One

The patterns below recur in CCMA files Burger Huyser Attorneys’ Labour Law practice sees from Gauteng-based employers — most of them are preventable with a tighter process at the start.

• Failing to set written performance criteria at the start of probation.
• Skipping the prior enquiry or hearing, even where the employee agrees the position is “not working.”
• Relying on a single incident rather than a documented pattern of concerns.
• Issuing a vague termination letter (“poor performance”) without linking it to the criteria and the evidence.
• Treating probation as a “no questions asked” exit, rather than a dismissal governed by the LRA.
• Refusing to pay the contractual or BCEA notice period.

What to look for when choosing a labour-law practitioner to handle a probation termination is straightforward: a firm that drafts criteria and interim-review templates before the issue arises, attends CCMA conciliation and arbitration, and has direct experience with the Gauteng CCMA regional offices in Johannesburg, Ekurhuleni, Tshwane, and the West Rand. Burger Huyser Attorneys’ Labour Law practice, led by specialist consultant Marius Ferreira and operating from the Linden, Randburg head office, is built around exactly that profile — the work is anchored in CCMA representation, disciplinary hearings, employment-contract drafting, and labour-court matters across those same Gauteng CCMA regions.

Step-by-Step: A Fair Termination During Probation

1. Set the criteria at the start of probation. Document the performance and suitability criteria, agree them with the employee, and keep a signed copy on file.
2. Review regularly. Hold at least one interim review (typically at the midpoint) and a final review at the end of probation. Record results in writing.
3. Identify the concerns. If the assessment shows the employee is not meeting the criteria, capture the specific concerns in writing — not general impressions.
4. Hold a prior enquiry. Give the employee written notice of the concerns, the date of the meeting, and the right to be accompanied. Hold the meeting, consider the response, and document it.
5. Decide and communicate. If the decision is to terminate, communicate it in writing, including the effective date, the reason, and the notice period (or pay in lieu).
6. Pay final monies. Pay outstanding salary, accrued leave, and any other contractual entitlements. Issue the tax certificate (IT3(a)) and the certificate of service on request.
7. Be ready for a referral. If the employee disputes the dismissal, the file (the employment contract, the criteria, the reviews, the meeting minutes, the termination letter) is the employer’s case at the CCMA.

Termination of employment during probation is a procedurally and substantively governed dismissal, not a soft exit — and CCMA referrals can be made against the employer within 30 days of the dismissal. If you are an employer facing a probation termination or a former employee who believes the dismissal was unfair, Burger Huyser Attorneys’ Labour Law practice can guide you through the assessment, the procedural enquiry, the termination paperwork, and the CCMA process. The firm operates from the Linden, Randburg head office (49 First Avenue, 011 888 0246) and represents clients at the Johannesburg, Ekurhuleni, Tshwane, and West Rand CCMA regional offices. Reach out to discuss the file and the next step.

Frequently Asked Questions

Is a probationary employee protected against unfair dismissal in South Africa?

Yes. The Labour Relations Act 66 of 1995 applies to all employees, including those on probation, and “dismissal” in section 186(1)(a) covers the termination of an employment contract during probation. Probation is not a free pass from the unfair-dismissal regime.

Does a probationary employee need to be given a hearing before dismissal?

Yes. The procedural-fairness standard still requires a prior enquiry in which the employee is informed of the concerns, given an opportunity to respond, and the response is considered before a decision is made. Skipping this step is a procedural-fairness defect that can render the dismissal unfair even where the substantive reason is sound.

How long can a probation period be?

There is no statutory maximum period in the LRA, but the Code of Good Practice on Dismissal (Schedule 8, Item 8(2)) requires the probation period to be agreed in advance, reasonable, and appropriate to the role. An excessively long probation period may be substantively unfair. Many employment contracts use three to six months, but the appropriate length depends on the nature of the job.

Can a probationary employee claim severance pay?

Severance pay under section 41 of the BCEA is triggered by dismissal for operational requirements (retrenchment), not by termination during probation for incapacity or incompatibility. A probationary employee will still receive the contractual or BCEA minimum notice period (section 37 BCEA), accrued leave pay-out, and outstanding remuneration up to the last day worked.

What is the time limit to challenge a probation dismissal at the CCMA?

A dismissed employee must refer an unfair-dismissal dispute to the CCMA within 30 days of the date of dismissal (section 191 of the LRA). The CCMA may condone a late referral if the employee shows a reasonable explanation and good faith, but the 30-day rule is the starting point.

Can a probationary employee be dismissed without a written contract?

No. The BCEA requires written particulars of employment no later than the first day of work (section 29), and the probation period must be agreed in advance in the contract. Operating without a written contract puts the employer at a significant evidentiary disadvantage if the employee disputes the dismissal.

What is the difference between a probation period and a fixed-term contract?

A probation period is a clause in an indefinite-term employment contract during which the employer’s right to assess the employee is calibrated to a shorter evidentiary window. A fixed-term contract is an employment contract that ends on a specified date or event, and section 198B of the LRA deals with fixed-term contracts separately. A “trial period” inside a fixed-term contract has its own statutory rules and should not be confused with probation.

Can an employer extend a probation period?

Yes, but only if the contract allows it and the extension is reasonable in the circumstances. Item 8 of Schedule 8 contemplates that the employer may continue the assessment beyond the original period; the employer should still notify the employee in writing, confirm the new end date, and observe the procedural-fairness requirements before any subsequent termination.

What happens if the employee resigns during probation?

A resignation is not a dismissal — the employee is taken to have terminated the contract, and the unfair-dismissal provisions of the LRA do not apply. The employee is still required to give the contractual or BCEA notice period (section 37 BCEA), and the employer must pay accrued leave and outstanding salary to the last day worked.