Understanding Deeds of Trust
March 29, 2020
Business Bytes, 2020-01 Edition
March 29, 2020

Probation Extensions. . .how these work?

 • By: Jonathan Goldberg | Global Business Solutions

The case of Ubuntu Education Fund v Paulsen NO and others – (2019) 28 LAC 1.11.55 looks at probation extensions and how these work.
The employee was employed as a supply chain coordinator on a six-month probationary period. During this period her Key Performance Areas were reduced from four to help her “find her feet”.

With two months of her probation to run, she was again required to perform all her KPAs and warned that there were concerns about her performance. A total of five performance appraisals were conducted and the employee was found to have performed poorly in each of these areas.
The employee was dismissed for poor performance about eight months after she commenced employment. The arbitrator found that the dismissal substantively unfair because the employee’s probation had ended and the employer had not considered alternatives short of dismissal. The employee was awarded compensation equal to six months’ salary. The Labour Court upheld the award on review.

On appeal to Labour Appeal Court, it was found that although the contract stipulated a probation period of six months, when that period expired the employer was engaged in an ongoing review and evaluation process, from which it could be inferred that the employer had resolved to extend the probation period.

The Court found the arbitrator erred by assuming that the employee had become permanently employed when the contractual probationary period had ended. The conclusion that the employee’s performance could be assumed to be satisfactory because she had been kept on for longer was also irrational.

The purpose of probation is not only to assess an employee’s competence but also to determine whether the employee is suitable in a wider sense, with reference to such matters as diligence, compatibility and character. The standard for dismissing probationary employees is lower.

It was clear – from the evidence – that the employee was not meeting the required performance standard. This was sufficient to justify the termination of her employment after extensive evaluation, consultation and counselling, especially by a non-profit organisation with limited resources.
The appeal was upheld and dismissal found to be fair.