Probation Periods Are Alive and Well:
What the New Code of Good Practice on Dismissal Means for Employers
Every so often, we hear an employer say something like: “There’s no point putting people on probation anymore — you can’t do anything about it anyway.” It’s one of the most persistent myths in South African employment, and it’s simply not true.
Probation periods are alive, well, and — following recent changes to our labour law — arguably more useful to employers than ever before. Here’s what’s changed, and how to use probation properly.
What’s Changed: The New Code of Good Practice on Dismissal
On 4 September 2025, the new “Code of Good Practice: Dismissal” came into effect under the Labour Relations Act. It replaces the old Schedule 8 Code that had guided dismissals since the LRA’s inception, as well as the separate Code on dismissals for operational requirements, consolidating misconduct, incapacity, and retrenchment into a single framework — the most significant reform to South African dismissal law in nearly three decades.
For probation specifically, the changes are good news for employers:
- Probation is no longer only about performance. Under the old Code, probation existed purely to evaluate work performance. The new Code expands its purpose to assessing an employee’s overall suitability for the role — which includes factors like conduct, attitude, adaptability, and compatibility with the team and workplace culture. In other words, the new hire who hits their targets but clashes with everyone around them can now legitimately be assessed on that, too.
- A lower bar during probation. The Code confirms that the reasons for dismissing a probationary employee may be less compelling than the reasons required to dismiss someone after probation has ended. Probation is genuinely meant to be a trial period — and the law now says so more clearly.
- Simpler procedures, especially for small businesses. The new Code explicitly recognises that small businesses often have no HR department and cannot run elaborate formal processes. Simpler, less formal procedures are acceptable — provided the fundamentals of fairness are still met. The emphasis throughout is on fairness over technical formality.
- Incompatibility is now formally recognised. The Code formally recognises incompatibility — the inability to work harmoniously with colleagues — as a ground for dismissal under incapacity. This was previously a grey area built on case law; it’s now written into the framework.
Important caveat: none of this means probation is a free pass. Fairness — both in the reason and the process — remains the cornerstone. A probationary dismissal with no evaluation, no feedback, and no opportunity for the employee to respond will still be found unfair at the CCMA, regardless of how the new Code reads. The Code is a guideline, not a loophole.
How to Put Someone on Probation (Properly)
Put it in writing, from day one. Probation must be agreed in the employment contract or letter of appointment, signed before the employee starts. You cannot impose probation retroactively after problems emerge.
Set a reasonable period. There is no fixed legal duration, but the period must be reasonable relative to the job. Three months is common for most roles; more senior or complex positions may justify six. The yardstick: long enough to genuinely assess suitability, no longer.
Define what success looks like. Record the duties, performance standards, and expectations against which the employee will be measured. “We’ll see how it goes” is not a probation plan — and it won’t survive scrutiny at the CCMA.
Specify the review process. State in the contract when reviews will happen (e.g. monthly), and that probation may be extended or employment terminated if the employee does not meet the required standard or prove suitable for the role.
How to Manage the Probation Period
This is where most employers come unstuck — not because they lack grounds, but because they lack records. During probation, you must actually do the assessing:
- Give real induction and training. The employee must be given a fair chance to succeed: proper onboarding, clear instructions, and the tools and support to do the job.
- Hold regular, documented reviews. Sit down at set intervals, measure performance and conduct against the agreed standards, and record the discussion. A simple one-page review form, signed by both parties, is worth its weight in gold later.
- Give honest feedback — early. If there are problems, the employee must be told what they are, what improvement is required, and by when. Vague dissatisfaction noted silently for three months, then unleashed in week twelve, is not a fair process.
- Offer guidance, counselling, or further training where appropriate. The Code expects employers to support improvement, not merely observe failure.
- Document everything. Every review, every conversation about shortcomings, every instance of support offered. If it isn’t written down, the CCMA will treat it as if it never happened.
How to Fairly End (or Extend) a Probation Period
If, despite feedback and support, the employee is not meeting the standard or proving suitable:
- Invite the employee to make representations. Before dismissing a probationary employee — or extending their probation — the employee must be given the opportunity to state their case. This need not be a full formal disciplinary hearing: a properly minuted meeting where the concerns are explained and the employee (who may be assisted by a colleague or shop steward) responds, satisfies the requirement. This step is non-negotiable under the new Code, just as it was under the old one.
- Consider the response genuinely. If the employee raises valid points — inadequate training, unclear instructions, unrealistic targets — address them. Consider whether an extension of probation, with clear conditions, is more appropriate than dismissal.
- If extending: confirm the extension in writing, with the reasons, the new end date, and the specific improvements required. An extension should be a genuine second chance, not a delayed execution.
- If dismissing: give notice as per the contract (or payment in lieu), provide written reasons, and keep your full paper trail — the contract with the probation clause, the review records, the feedback given, the support offered, and the minutes of the final meeting. Remember that probationary employees retain the right to refer an unfair dismissal dispute to the CCMA — your protection is not that they can’t challenge it, but that your fair, documented process will hold up when they do.
- Don’t let probation simply lapse. If the probation end date passes without a decision, the employee is generally regarded as confirmed in the position — and the more lenient probationary standard is gone. Diarise the end date and make an active decision before it arrives.
The Bottom Line
The new Code has strengthened the employer’s hand during probation — wider grounds, lighter procedure, and explicit recognition that a trial period is exactly that. But the deal remains the same as it always was: the law gives you flexibility in exchange for fairness. Agree probation upfront, assess genuinely, give feedback, keep records, and hear the employee out before deciding — and probation becomes exactly what it was always meant to be: your best protection against the cost of a wrong hire.
This article is general information, not legal advice. For specific situations, consult a labour law practitioner.
Hiring right the first time is still the best probation strategy of all. RESOURCE Recruitment has been matching KZN employers with quality, properly vetted candidates since 2002 — and our RESOURCEful Background Checks division verifies qualifications, references, and records before you sign that contract.
