Probation is often misunderstood. Many employers believe probation means they can “let someone go” with minimal process — but at the CCMA, probation dismissals are still tested for fairness.
The good news? The updated Code of Good Practice: Dismissal (Schedule 8) gives clearer guidance on how probation should work and what a fair probation dismissal looks like.
Below is a practical, employer-focused guide to doing probation properly — without turning it into a paperwork nightmare.
What changed: the updated Code of Good Practice (Dismissal)
The Code (published in the Government Gazette and effective from 4 September 2025) sets out the core principle that a dismissal is only fair if there is:
- a fair reason, and
- a fair procedure.
It also reminds decision-makers to consider the realities of small businesses — small employers can’t reasonably be expected to run overly formal, time-consuming “corporate” processes.
Probation basics: what probation is (and what it is NOT)
1) Probation is a real employment relationship
A probation employee is an employee. If you terminate their employment, it is still a dismissal (and can still be referred to the CCMA).
2) Probation must be agreed upfront and must be reasonable
The Code states that a probation period should be determined in advance and be reasonable, considering the circumstances of the job.
Employer tip: Put probation in writing in the contract and include:
- the length of probation
- performance/suitability criteria
- review dates
- what support/training will be provided
- what outcomes are possible (confirmation / extension / dismissal)
3) Probation is for performance and “suitability”
The Code specifically notes probation is used to assess whether the employee is:
- capable of doing the work, and
- suitable for the job (this can include practical fit for the role, not just output).
4) Probation may NOT be used as a revolving door
The Code warns against abuse — probation must not be used to avoid giving permanent employment status, and dismissing for reasons unrelated to probation (and simply replacing the person) may be unfair.
The employer’s duty during probation: “reasonable guidance”
This is where most employers lose at the CCMA.
During probation, an employer should give the employee reasonable guidance appropriate to the job and the size of the business, which may include:
- instruction
- training
- counselling
The goal is to give the employee a fair opportunity to reach a satisfactory standard.
In plain English:
If performance is poor, you can’t wait until the final day and then suddenly dismiss. You must show you raised concerns, gave support, and gave a fair chance to improve.
When you may dismiss (or extend) a probation employee
Step 1: Identify the real reason
Probation dismissals usually fall under:
- poor work performance / capacity, or
- sometimes conduct (misconduct during probation still requires fairness).
Step 2: Follow a fair probation decision process
The Code is very clear: you may only decide to dismiss or extend probation after:
- giving the employee the opportunity to make representations, and
- considering those representations.
Practical way to do this (simple but strong):
- Invite the employee to a probation review meeting (in writing if possible).
- Explain the concerns clearly (with examples).
- Ask for the employee’s version/explanation.
- Consider any explanations (training gaps, unclear instruction, workload, personal issues, etc.)
- Decide on one of 3 outcomes:
- confirm appointment
- extend probation with an improvement plan
- dismiss (with reasons)
Step 3: Understand the fairness “threshold” is slightly different in probation
The Code indicates that when assessing fairness during probation, decision-makers should accept (taking account of the purpose of probation) that the reasons for dismissal may be less compelling than after probation.
Important: “Less compelling” doesn’t mean “no reason” or “no process”. It means probation is recognised as a legitimate testing period — but you still must act fairly.
A simple probation dismissal checklist (employer-friendly)
Use this checklist to CCMA-proof your probation dismissal:
✅ Before the employee starts
- Probation clause included in contract
- Job expectations and KPIs explained
- Training/induction plan set
✅ During probation
- At least 1–3 check-ins (depending on length of probation)
- Performance feedback given (documented)
- Support/training/counselling provided where needed
✅ If performance is not improving
- Give a clear warning that probation outcome is at risk
- Set a short, realistic improvement period
- Put a simple improvement plan in writing
✅ Before dismissal / extension
- Hold a probation outcome meeting
- Give employee a chance to make representations
- Consider their representations honestly (make notes)
✅ Outcome letter
- Confirm outcome in writing (confirm/extend/dismiss)
- If dismissing: record the reason and the key steps taken
What about incompatibility / “not fitting in” during probation?
Sometimes the issue isn’t pure performance — it’s conflict, teamwork issues, communication style, or culture clash.
The Code recognises that incompatibility can amount to a form of incapacity that may justify dismissal.
Best practice: Treat incompatibility like a structured process:
- raise the issue early
- attempt counselling/adjustments
- get both sides
- document attempts to resolve
- only then consider dismissal
Notice pay: do you still need to give notice on probation?
Yes — unless it’s a lawful summary dismissal for serious misconduct.
For poor performance/incapacity on probation, your safest route is:
- give statutory/contractual notice, or
- pay in lieu of notice.
South African notice periods were amended so that the minimum notice framework works on a “weeks/months of service” basis (for example, one week for six months or less, two weeks for more than six months up to one year, and four weeks thereafter).
(Your contract may provide longer notice, but not less than the statutory minimums.)
Small business owners: how formal must the process be?
The Code specifically recognises that small businesses operate differently, and they should not be expected to run overly complex pre-dismissal processes.
So what is “enough” for a small employer?
- Clear expectations
- A few documented check-ins
- Proof of guidance/support
- A fair chance for the employee to respond before you decide
That’s it. Clean, fair, and defensible.
Looking ahead: possible further changes (Bill published for comment in 2026)
There is also a Labour Law Amendment Bill (published for public comment) proposing major changes — including a proposal that unfair dismissal protections may not apply in the first three months, or that procedures may be simplified during this early period/probation (if reasonably justifiable).
This is not something to rely on as “current law” yet — but it’s important to watch, because it could materially change how probation disputes play out.
Final takeaway (and the best way to stay safe)
If you remember only one thing, make it this:
Probation dismissals must still be fair — but fairness can be simple.
Set expectations, guide the employee, document the basics, and let them respond before you decide.
(This article is general information and not legal advice. Always assess the facts of your specific case.)
