This guide is about that difference and what it does not cover. It explains the Code generally and is not advice about your own case.

Probation is allowed, for one purpose

An employer may require a new employee to serve a period of probation before confirming the appointment. The purpose is to give the employer a chance to evaluate your performance and suitability before confirming you.

That purpose is also the limit. The Code says probation should not be used to deprive employees of permanent status, and gives the example of an employer that dismisses people at the end of probation for reasons unrelated to performance and replaces them with new hires. The Code says that practice is inconsistent with the purpose of probation and may be an unfair dismissal. If you were let go at the end of probation and someone was hired into the same job the following week, that sentence is the one to read twice.

What the employer is expected to do during probation

Three things, all from the Code.

Set the period in advance, and keep it reasonable. The length should be decided before you start and should match the nature of the job and how long it takes to judge suitability. A probation period that keeps getting extended, or one that was never stated, is worth noting.

Give reasonable guidance. During probation the employer should give you guidance appropriate to the job and to the size of the employer, which can include instruction, training or counselling, so that you have a chance to perform. If you were given no feedback at all until the day you were let go, that is a gap in the employer's side of the bargain, not yours.

Hear you before deciding. An employer may only decide to dismiss a probationer, or to extend the probation, after giving the employee an opportunity to make representations and considering them. "Representations" means your side. It does not require a formal hearing, but it does require that you were asked and listened to before the decision was made. If there was no conversation at all, Dismissed without a hearing: is that unfair? applies to probation as much as to anyone else.

What is different: the standard

Here is the part that makes probation different, in the Code's own words. Anyone deciding whether a probation dismissal for conduct or capacity, including poor performance, was fair "ought to accept, taking into account the purpose of probation, reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period."

In plain terms: an employer does not have to show the same weight of reason to let a probationer go as it would to dismiss a five year employee for the same performance. The bar is lower. It is not gone.

What stays the same is the process requirement above, and the rule that it is the employer who has to prove the dismissal was fair, not you who has to prove it was unfair.

After probation, the standard goes back up

For comparison, once probation is over, the Code says an employee should not be dismissed for unsatisfactory performance unless the employer has given appropriate evaluation, instruction, training, guidance or counselling, and the employee continues to perform unsatisfactorily after a reasonable period to improve. That is a materially heavier requirement, and it is the reason the date your probation ended matters. If you were dismissed after it ended, this is the standard, not the probation one.

The CCMA process is slightly different too

Probation disputes are set down as con-arb: conciliation and arbitration in one process, often on the same day. For most dismissals a party can object to that in advance. For a dismissal relating to probation there is no objection; the con-arb route applies. Arrive prepared for both stages. What actually happens at CCMA conciliation describes the first.

Everything else is the same: the 30 days, which How long do you have to refer a case to the CCMA? explains, the referral form, the onus on the employer, and the remedies if the dismissal is found unfair.

What to write down now

  • The date you started, the probation period you were told, and where it is written.
  • Every piece of feedback you received, when, from whom, and whether it was in writing.
  • Whether you were asked for your side before the decision, and what you said.
  • The date you were told, and whether it was before or after the probation period ended.
  • Who, if anyone, was hired into the role afterwards.

Where this leaves you

A probation dismissal is harder to challenge on the reason, by design, and no honest guide will tell you otherwise. It is challenged, when it is, on the process and on the purpose: were you heard, were you guided, and was probation being used for what the Code says it is for. Do you have a CCMA case? How a commissioner decides sets out the questions.

FairCase gives you a written read on an unfair dismissal case, with the probability score, the calculation shown, a settlement range and the risks. For a probation dismissal with a fair process behind it, the honest answer is often that the case is weak, and the report says so when that is what the answers show. Finding that out in five minutes is cheaper than finding it out at arbitration.