Many employers believe probation is a free pass — that a probationary employee can be let go at any time, for any reason, with no process at all. That belief is wrong, and it's wrong under South African law whether your employer knows it or not.
If you were dismissed while on probation, you may still have a strong unfair dismissal case. This guide explains what the law actually requires, what changed recently, and what to do next.
Not sure where this fits in the bigger picture? See the complete step-by-step guide to filing your own CCMA case.
What probation actually is, legally
Probation is a defined period at the start of employment during which an employer evaluates whether to confirm your permanent appointment. Its only legitimate legal purpose is to assess your performance and suitability for the role — it is not, and was never intended to be, a trial period during which normal employee protections don't apply.
A probationary employee is still an employee under the Labour Relations Act, with full protection against unfair dismissal from day one.
What changed under the updated Code of Good Practice
The Code of Good Practice: Dismissal, which sets out the detailed rules for fair dismissal, was updated to expand the grounds on which an employer can fairly dismiss a probationary employee. Historically, probation dismissals were expected to focus mainly on work performance. The updated Code broadens this to include wider suitability factors — things like workplace compatibility and adaptability.
This is a meaningful shift, but it cuts both ways. It gives employers more grounds to justify a probation dismissal — but it does not remove the requirement for a fair process. A dismissal without evaluation, feedback, or a chance to respond is still unfair, regardless of which ground the employer relies on.
What employers often assume
"It's just probation — I can let them go whenever, however, for any reason, with no paperwork and no warning."
What the law actually requires
A relaxed but still real process — evaluation, feedback, an opportunity to improve, and a chance to respond before the final decision.
What a fair probation dismissal has to look like
The standard during probation is more flexible than for a permanent employee, but a fair process still generally requires:
- Actual evaluation against clear, communicated performance or conduct standards — not a vague, unstated expectation
- Feedback along the way — you should have been told there was a problem before the final decision, not only at the end
- Guidance, counselling, or training where appropriate, to give you a genuine opportunity to improve
- An opportunity to respond to any concerns before you are dismissed — even if this is a shorter, less formal process than a full disciplinary hearing
Situations that are still unfair, even during probation
- You were dismissed on your first review with no prior warning that performance was a concern
- No review meetings were ever held during your probation period
- You were given no training or support despite clear gaps in what was expected of you
- Your probation was extended indefinitely, then you were dismissed with no new reasoning given
- You were dismissed for "not being a good fit" with no specific, communicated concerns beforehand
- You were dismissed with immediate effect and no opportunity to respond at all
What can you actually claim?
If your probation dismissal is found unfair, the same remedies apply as any other unfair dismissal case — reinstatement, re-employment, or compensation up to 12 months' remuneration for an ordinary unfair dismissal. In practice, because probationary service is typically short, compensation awards in probation cases have often landed well below the maximum — length of service is one of the factors a commissioner weighs. That does not mean it isn't worth pursuing; it means your expectations of the outcome should be realistic, not that you don't have a case.
What should you do right now?
- Calculate your 30-day deadline from the date of dismissal and write it down.
- Gather everything in writing — your employment contract, any probation review notes, performance feedback (or the lack of it), and your dismissal letter or message.
- Write down your own timeline — what feedback you did or didn't receive, and when.
- Check whether your sector has a Bargaining Council — if so, your referral goes there instead of the CCMA.
- Complete and file LRA Form 7.11 before your 30-day deadline.
Frequently asked questions
Can I be fired during probation in South Africa without warning?
No, not fairly. Probationary employees are still protected under the Labour Relations Act. The employer must evaluate performance, give feedback, offer guidance or training where appropriate, and give the employee a chance to improve before dismissing them.
Does probation give an employer more flexibility to dismiss?
Yes, to an extent. The standard of fairness applied during probation is more relaxed than for a permanent employee, particularly around performance issues. But it does not remove the requirement for a fair process altogether.
What changed with the updated Code of Good Practice on Dismissal?
The updated Code expanded the grounds on which an employer can fairly dismiss a probationary employee beyond just work performance, to include broader suitability factors such as workplace compatibility. However, substantive and procedural fairness are still required regardless of the ground relied on.
Can I refer a probation dismissal to the CCMA?
Yes. You have 30 calendar days from the date of dismissal to refer an unfair dismissal dispute to the CCMA using LRA Form 7.11, the same process as any other unfair dismissal claim.