Can you dismiss an employee on probation? What GN 3470 actually requires

It is one of the most common things South African small business owners believe about employment law, and it is wrong: "They're still on probation, so I can let them go whenever I want."

You cannot. A probationary employee has the same right not to be unfairly dismissed as a permanent one. What changes during probation is not whether fairness applies — it is how much the employer has to show. The Code of Good Practice: Dismissal spells this out, and since September 2025 it does so in its own dedicated items rather than as an afterthought.

Where the rules now live

Until recently, probation was governed by Schedule 8 of the Labour Relations Act. As of 4 September 2025, Schedule 8 no longer exists — the Code of Good Practice: Dismissal was republished as a standalone instrument, GN 3470 in Government Gazette 53294. Probation now has its own block of provisions (Items 14 to 18) covering when probation may be required, how long it should last, and what an employer must do before deciding not to confirm an appointment.

If your contracts or your labour consultant's templates still refer to "Schedule 8" for probation, they are citing an instrument that no longer exists. The correct authority is:

Code of Good Practice: Dismissal (GN 3470, GG 53294, 4 September 2025)

What probation is actually for

The Code is explicit that probation exists for one purpose: to give the employer a fair chance to evaluate the employee's performance before confirming the appointment. It is not a no-fault dismissal window, and it is not a way to keep someone on a permanent rolling trial.

That purpose creates obligations. During probation, the employer is expected to:

• Set a reasonable period of probation, determined by the nature of the job and the time it reasonably takes to assess suitability
• Give the employee reasonable evaluation, instruction, training, guidance or counselling so they have a genuine opportunity to meet the required standard
• Tell the employee, during the probation period and not only at the end, where they are falling short — so the shortfall can be addressed while there is still time to fix it

An employer who never explained the standard, never raised a concern, and then declined to confirm the appointment on the last day has not met these obligations.

The lower bar — and where it stops

Here is the part employers actually want to hear, stated accurately. The Code says that the reasons for dismissing a probationary employee may be less compelling than the reasons required to justify dismissing an employee after confirmation. A genuine, good-faith assessment that the person is not suited to the role can be enough — you do not need to prove the same level of serious misconduct or sustained poor performance you would need for a permanent employee.

But "less compelling reasons" is not the same as "no process." Before deciding not to confirm an appointment — or to dismiss during probation — the employee must be:

• Given an opportunity to make representations about the decision, and
• Entitled to be assisted by a trade union representative or fellow employee when doing so

In other words: a conversation, on notice, where the employee gets to respond before the decision is finalised. It is lighter than a full misconduct hearing, but it is still a fair procedure. Skip it, and a probation dismissal becomes procedurally unfair no matter how reasonable your underlying assessment was.

Probation is not a licence — three traps

Trap 1 — "Probation means at-will." It does not. The employee can refer an unfair dismissal dispute to the CCMA exactly as a permanent employee can. The employer still has to show a fair reason and a fair process. The reason can be less weighty; the process cannot be skipped.

Trap 2 — Extending probation indefinitely. Probation should be a reasonable, defined period. Rolling it over again and again to avoid confirming someone is the kind of thing an arbitrator views poorly. If you genuinely need more time, the Code allows extension — but it should be for a fair reason, communicated to the employee, and proportionate.

Trap 3 — Silence, then surprise. The single most common probation failure we see is an employer who said nothing for three months, then declined to confirm on the basis of problems the employee had never been told about. The Code requires evaluation and guidance during probation precisely to prevent this. No feedback trail, no fair dismissal.

What confirmation actually means

Once you confirm the appointment — or once probation lapses without action — the employee becomes a permanent employee, and the "less compelling reasons" allowance falls away. From that point a performance dismissal requires the full poor-work-performance process: a clear standard, an evaluation, an opportunity to improve over a reasonable period, and a proper hearing. So the practical advice is simple: make the confirm-or-don't decision deliberately, before probation ends, on the strength of a documented assessment — not by letting the date slide past.

What to keep on file

If a probation dismissal is ever challenged, the paper trail is what saves you. For a defensible probation decision you want:

1. The employment contract stating the probation period and that the appointment is subject to confirmation
2. A record of the standard or expectations communicated at the start
3. Evaluation notes or check-ins showing the employee was assessed and given feedback during the period
4. A record of any guidance, training or counselling offered to help them improve
5. The invitation to the pre-decision meeting and a note that the employee could bring a representative
6. The outcome, in writing, with the reason for not confirming

If most of those are missing, the dismissal rests on your word alone — and at the CCMA, the onus is on the employer to prove fairness.

---

CasePilot guides you through a fair probation review and every other disciplinary process — generating the right documents under the correct GN 3470 citation, enforcing notice periods automatically, and assembling a CCMA-ready bundle in one click. Start a free 7-day trial — no credit card required.

This article is general information about South African labour law, not legal advice. For advice on a specific situation, consult a qualified labour law practitioner.