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By Natasha Bhandari | Recruitment Specialist, SkillzPage Published: 10 February 2026 | Last updated: 10 February 2026
Probation period labour law in South Africa is governed by the Labour Relations Act 66 of 1995 — specifically Item 8 of Schedule 8, known as the Code of Good Practice: Dismissal. This is the legal framework that defines employer rights during probation, sets the rules for probation dismissal, and determines what the CCMA will assess if a dispute is referred. Every employer managing a probationary employee in South Africa needs to understand these provisions.
The Code establishes several core principles. An employer may require a newly hired employee to serve a probation period before confirming their appointment. The purpose of that period is to evaluate the employee's performance — and only their performance. Probation is not a general "trial run" that allows an employer to dismiss someone for any reason with reduced consequences. It exists specifically to test whether the employee can do the job at the required standard (Labour Relations Act, Schedule 8, Item 8).
Importantly, the Code does not prescribe a fixed duration. It states only that the period must be "reasonable given the circumstances of the job" and determined by the nature of the work and how long it takes to assess suitability. The employer decides the length — but that decision must be justifiable.
During probation, the employer is obligated to provide the employee with evaluation, instruction, training, guidance, and counselling. If the employee's performance falls short, the employer must address this through a structured process before any dismissal can occur.
After almost two decades of recruiting IT, Engineering, and Finance professionals across South Africa, we can say with confidence that the most common and most expensive misunderstanding about probation is this: employers believe a probationary employee can be dismissed more easily than a permanent one.
This is incorrect. The Labour Relations Act provides probationary employees with the same fundamental protections as all other employees. A decision not to confirm an appointment at the end of probation — or to terminate employment during probation — constitutes a dismissal under the Act. That means the dismissal must be both substantively fair (there must be a valid reason) and procedurally fair (the employer must have followed a proper process).
As labour law specialists at SERR Synergy have noted, the probationary status of an employee is only relevant to matters of work performance or competency. It has no bearing on misconduct, operational requirements, or any other grounds — those are handled through the same procedures that apply to any permanent employee (SERR Synergy, "5 Important Facts About Probation").
The practical implication is straightforward: if you dismiss a probationary employee without following the correct process, the employee can — and very likely will — refer the matter to the CCMA. Probation-related dismissals are scheduled for compulsory con-arb hearings, meaning conciliation and arbitration happen on the same day. There is no buffer period. The employer must be prepared to defend the dismissal immediately (CCMA Probation Information Sheet).
There is no legally prescribed minimum or maximum. The convention in South Africa is three to six months, but the only legal requirement is that the duration be reasonable relative to the complexity of the role.
A reasonable guideline based on common industry practice:
The key principle is that the duration should reflect how long it genuinely takes to assess whether the employee can perform the role — not how long the employer wants to defer making a commitment.
These are the patterns we see repeatedly, drawn from nearly 20 years of experience working with employers across multiple industries.
Some employers dismiss employees during or at the end of probation with little or no process, believing that the probationary status gives them licence to terminate at will. It does not. Every dismissal during probation is subject to the same fairness requirements under the LRA. The only difference is a slightly lower procedural threshold — a formal disciplinary hearing is not required, but the principles of natural justice still apply, including giving the employee an opportunity to respond to concerns about their performance.
If a performance issue is not documented, it effectively did not happen — at least not in the eyes of a CCMA commissioner. Employers who rely on verbal conversations, informal feedback, or their own recollection consistently lose arbitration hearings because they cannot produce documentary evidence of the process they claim to have followed.
Dismissing an employee at the end of probation when the employee had no prior indication that their performance was unsatisfactory is a reliable path to an unfair dismissal finding. The Code of Good Practice requires that the employee be counselled about performance shortcomings and given a reasonable opportunity to improve before any termination decision is made.
If the employer has not clearly communicated what "satisfactory performance" looks like — with measurable criteria, documented from the start of employment — then proving that the employee failed to meet expectations becomes extremely difficult. The CCMA expects the employer to demonstrate that expectations were communicated clearly and were understood by the employee at the commencement of employment.
This is the root cause that most employers overlook. Probation exists to assess performance, not to compensate for a weak recruitment process. When a candidate is poorly matched to the role — whether in terms of skills, experience, or cultural alignment — the probation period becomes a slow-motion exit rather than a genuine evaluation. The most effective way to reduce probation-related risk is to improve the quality of hiring decisions before the employment contract is signed.
When the CCMA evaluates a probation dismissal, the commissioner applies two tests.
Substantive fairness asks whether there was a valid reason for the dismissal. During probation, the valid reason is almost always poor work performance — the employee was unable to perform the job at the required standard despite being given adequate support. The employer must be able to show what the required standard was, how the employee fell short, and what support was provided.
Procedural fairness asks whether the employer followed a fair process. For probation dismissals, the process does not need to be as formal as a full disciplinary hearing. However, it must satisfy the principles of natural justice. According to the Code of Good Practice and the CCMA's own guidance, this means:
Failing on either test — even if the other is met — can result in an unfair dismissal finding. In the well-known case of Fraser vs. Caxton Publishers (2005, 3 BALR 323), the CCMA agreed that the employee was guilty of serious misconduct warranting dismissal. The dismissal was nonetheless found to be unfair because the employer had not given the employee a chance to defend herself. The employer was ordered to pay four months' compensation.
The original version of this article suggested a "Week 1-2, Week 3-4, Week 5-6" framework. In practice, performance management during probation rarely fits into a six-week window. A more realistic approach, assuming a standard three-month probation, would look something like this:
Month 1: Set expectations and observe
The first month should be focused on onboarding, orientation, and clearly establishing what success looks like. Performance expectations — ideally documented as part of the employment contract or a probation plan — should be discussed and confirmed in writing during the first week. During this period, the employer is observing, providing initial training, and identifying any early signals of concern.
If concerns emerge, address them informally but document the conversation. A brief email summarising what was discussed is sufficient at this stage.
Month 2: Intervene formally if needed
If performance issues persist or new ones emerge, this is the point to escalate to a formal written notice. The notice should identify the specific areas of underperformance, reference the expectations that were set, describe the support that has been or will be provided (additional training, mentoring, adjusted workload), and set clear, measurable improvement targets with a deadline.
The employee must be given an opportunity to respond — in writing if they prefer. Their response should be acknowledged and placed on file.
Month 3: Assess and decide
Evaluate whether the employee has met the improvement targets. If they have, confirm the appointment. If they have not, and you have documented the process from the outset, you are in a defensible position to either extend the probation (with justification) or proceed with dismissal.
Before dismissing, the employer must give the employee a final opportunity to make representations. The employer should also genuinely consider whether an extension or an alternative role might be appropriate. The decision and its reasoning should be documented in writing.
The Code of Good Practice permits employers to extend probation periods, but only where this is justified and handled properly. An extension is not a way to avoid making a decision — it should reflect a genuine belief that the employee can reach the required standard with additional time.
The Consolidated Employers Organisation has noted that the decision to extend a probationary period must not be taken arbitrarily. The employer must engage in a formal consultation with the employee, clearly explain the reasons for the extension, and allow the employee to make submissions. Those submissions must be considered before the decision is finalised. The reasons and terms of the extension should be documented in writing (CEO, "Extending or Concluding Probation").
Practically, employers should ensure the following before extending:
Extensions of one to three months are typical. An employer who extends probation repeatedly without resolution risks a CCMA finding of unfair labour practice — the extension itself can be referred as a dispute.
A well-drafted probation clause reduces ambiguity and strengthens the employer's position if a dispute arises. At minimum, the contract should address:
Duration and purpose: Specify the length of the probation period and state that its purpose is to assess the employee's work performance and suitability for the role.
Performance standards: Reference the specific key performance areas or indicators that will be used to evaluate the employee. These can be attached as an annexure to the contract or documented in a separate probation plan signed by both parties.
Review schedule: State when formal performance reviews will take place — for example, at the 30-day, 60-day, and 90-day marks. Confirm that written feedback will be provided and that the employee may respond in writing.
Extension provision: Include a clause allowing the employer to extend the probation period for a defined maximum duration, with written notice and reasons, and subject to consultation with the employee.
Notice requirements: Specify the notice period during probation. Section 37 of the Basic Conditions of Employment Act requires a minimum of one week's notice during the first six months of employment. The contract may stipulate a longer notice period.
Process for non-confirmation: State that if the employer determines the employee's performance is unsatisfactory, the employer will follow the process outlined in the Code of Good Practice: Dismissal before making any termination decision.
The following are reported CCMA arbitration outcomes — not hypothetical scenarios.
Tharratt vs. Volume Injection Products (Pty) Ltd (2005, 6 BALR 652)
An employee was dismissed during probation for poor performance. The employer had not investigated the cause of the poor performance or followed any structured process. The CCMA found the dismissal unfair and ordered the employer to pay compensation equal to three months' remuneration (LabourGuide).
Smith vs. Patient Focus Africa (Pty) Ltd (2009, 18 CCMA 7.20.1)
The employee's probation was extended due to poor performance. The employer initially addressed the performance issues but stopped doing so during the final two months of employment. The commissioner found that the employee should have been counselled throughout and given the opportunity to make representations before dismissal. The employee was awarded one month's salary in compensation.
Fraser vs. Caxton Publishers (2005, 3 BALR 323)
The employee was dismissed for falsifying her CV and incompatibility. The CCMA agreed that the misconduct was serious enough to warrant dismissal. However, because the employer had not given the employee a chance to defend herself against the charges, the dismissal was found to be procedurally unfair. Compensation: four months' remuneration.
The maximum compensation the CCMA can award for an unfair dismissal is 12 months' salary (or 24 months for automatically unfair dismissals). Even where the amounts are lower, the legal fees, management time, and reputational damage associated with a CCMA dispute represent significant additional costs — particularly for small and medium-sized businesses (LRA, Section 194).
Can I dismiss an employee during probation without a hearing?
You do not need to hold a formal disciplinary inquiry. However, you must follow a fair process that includes counselling the employee about their performance, giving them an opportunity to improve, and allowing them to make representations before the dismissal decision is taken. The principles of natural justice apply even where a formal hearing is not required.
Does probation protect me from CCMA claims?
No. An employee dismissed during or at the end of probation has 30 days to refer a dispute to the CCMA. Probation-related dismissals are scheduled for compulsory con-arb, meaning the matter may be conciliated and arbitrated on the same day.
Can I put an employee on a fixed-term contract instead of probation?
If the position is permanent in nature, the appointment must also be permanent — with a probation clause if desired. Using a fixed-term contract as a substitute for probation is not one of the grounds listed under Section 198B of the LRA and may expose the employer to additional legal risk.
What if the employee resigns during probation?
The employee may resign at any time, subject to the notice period specified in the contract (minimum one week during the first six months of employment under the BCEA). If the employee claims the resignation was forced due to intolerable working conditions, they may pursue a constructive dismissal claim.
How many times can I extend probation?
There is no statutory limit, but repeated extensions without clear justification and documented progress will be viewed unfavourably by the CCMA. A single extension of one to three months is typical. If the employee has not demonstrated meaningful improvement after one extension, the more defensible course of action is usually to proceed with dismissal — provided the full process has been followed.
Getting hiring decisions right from the start
The most effective way to avoid probation disputes is to reduce the number of poor hiring decisions. When a candidate's skills, experience, and working style are well-matched to the role and the organisation before they start, probation serves its intended purpose — a structured period of integration and confirmation — rather than a prelude to a difficult exit.
This is where working with a specialist recruiter can make a meaningful difference. At SkillzPage, we've been placing IT, Engineering, Finance, and Executive professionals across South Africa for over 20 years. Our process includes in-depth candidate assessment, video interviews that give hiring managers real insight before the first meeting, thorough reference and background checks, and salary benchmarking to ensure offers align with market expectations.
Download: Probation Period Compliance Checklist
We've created a one-page checklist summarising the key steps employers must follow during probation — from setting expectations on day one through to lawful dismissal or confirmation. Keep it in your HR file for quick reference during every new hire's probation period.
Ready to reduce your hiring risk?
Visit www.skillzpage.com or call 010 157 0179.
SkillzPage insights:
Official sources and legislation:
Disclaimer: This article provides general information about probation periods under South African labour law. It does not constitute legal advice. Employers should consult with a labour law practitioner before making dismissal decisions.
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