Abstract:
The right to fair dismissal during the probation period in the employment contract is well
recognised in South African labour law. Anecdotal evidence explored in this study suggested
that South Africa may be over-regulated in this regard. The International Labour
Organisations’ (ILO) Convention C158 provides international standard setting guidelines in
respect of the termination of any worker’s employment during the probation period. The
ILO’s standards in this regard were considered and the respective positions on dismissal
during the probation period of employment in the Netherlands, the United Kingdom and
South Africa were compared to ILO Convention C158.
The researcher found the dismissal practices during the probationary period of employment
in South Africa to be out of step with the international standards and the position in the
selection of foreign jurisdictions. The researcher recommends that law makers and
employers should incorporate a more flexible dismissal framework during the probation
period, governed by an annual financial income threshold. This will simultaneously protect
employees against unfair dismissals after a certain period and allow employers to utilise a
skilled labour force which is aligned to the specific industry and organisational operating
standards.
