International perspectives on the termination of employment during the probation period

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.