LLW2601 - INDIVIDUAL LABOUR LAW 2023 with verified questions and answers

THE FIVE TESTS Control test, organisation test, dominant impression test, economic capacity test, reality test. LRA AND BCEA DEFINITION OF EMPLOYEE In private and public sectors, and domestic and farm works. It also includes any person who in any manner assists in carrying on or conducting the business of an employer. (Locatio conductio operarum) CONTROL TEST The control the employer has over the work the person does. Control includes the right to determine what work the employee will do, in what manner and what the employee's working hours will be, and • control may be a term of the contract, but even where it is not specified in the contract, it does not necessarily mean that a contract of employment does not exist. ORGANISATION TEST Whether the person is part and parcel of the business must be an intergral person. Inter alia, that: the traditional workplace no longer exists and the employee does not need to work from the employer's premises in order for an employment relationship to exist, and the tools of trade provided by the employer should not be interpreted narrowly. ECONOMIC CAPACITY TEST Which an employee's income-earning capacity is solely dedicated to the employer. The Code confirms the importance of this test. It states that there is no single decisive factor to determine the existence or absence of an employment relationship and all factors should be taken into account when determining the nature of the relationship. REALITY TEST Substance of the relationship as opposed to the form thereof. INDEPENDENT CONTRACTOR One who contracts to perform certain tasks for a set fee, but who is independent of the control of the contracting party as a means by which the contract is executed, except for specifications established in the contract. (Locatio conductio operis) DOMINANT IMPRESSION TEST Considers the employment relationship as a whole. SECTION 200A OF THE LRA 'Until the contrary is proved, for the purposes of this Act ..., a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: (a) the manner in which the person works is subject to the control or direction of another person; (b) the person's hours of work are subject to the control or direction of another person; (c) in the case of a person who works for an organisation, the person forms part of that organisation; (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; (e) the person is economically dependent on the other person for whom she/he works or renders service.(f) the person is provided with tools of trade or work equipment by the other person; (g) the person only works for or renders services to one person. NON-STANDARD EMPLOYEES Employees provided by a temporary employment service (hereafter 'TES'/ labour brokers) or so-called temporary employees, • fixed-term employees, and • part-time employees. TEMPORARY EMPLOYMENT SERVICE (TES) 'any person who, for reward, procures for or provides to a client other persons who render services to, or perform work for, the client; and who are remunerated by the temporary employment service.' This refers to employees supplied to a client by a TES/labour broker, on temporary basis or to render a temporary service for the client. Such a relationship is characterised by its triangular form as it involves three parties, namely, the employee, the TES/labour broker and the client FIXED TERM EMPLOYEES This refers to a contract of employment that terminates on/at: • the occurrence of a specified event, • the completion of a specified task or project, or • a fixed date other than an employee's normal or agreed retirement age. The following employees are excluded from the restrictions with regard to fixed-term employees: • Employees earning more than the BCEA threshold of R205 433 per year. • Employees of an employer that employs fewer than 10 employees, or an employer that employs fewer than 50 employees and whose business has been in operation for less than two years, unless the employer conducts more than one business; or the business was formed by the division or dissolution for any reason of an existing business. • An employee employed in terms of a fixed-term contract permitted by any: - statute, - sectoral determination, or - collective agreement. JUSTIFIABLE REASONS FOR FIXED TERM CONTRACT/EMPLOYMENT 1. Is replacing another employee who is temporarily absent from work, 2. Is employed on account of a temporary increase in the volume of work which is not expected to last beyond 12 months 3. Is a student or recent graduate who is employed for the purpose of being trained or gaining work experience, 4. Is employed to work exclusively on a specific project that has a limited or defined duration, 5. Is a non-citizen who has been granted a work permit for a specific period. 6. Is employed to perform seasonal work 7. Is employed for an official public works or similar scheme 8. Is employed in a position which is funded by an external source for a limited period, or. 9. Has reached the normal or agreed retirement age applicable in the employer's business and continues to perform work for that employer. PART-TIME EMPLOYEES An employee who is remunerated wholly or partly by reference to the time that the employee works, and who works less hours than a comparable full-time employee. CATEGORIES OF EMPLOYEES EXCLUDED FROM THE LRA These categories are:31 • members of the National Defence Force, and • members of the State Security Agency. PROTECTION AND REGULATION OF ILLEGAL AND FOREIGN WORKERS The Constitution has come to the rescue of some illegal workers by developing the common-law prinicples so that some illegal workers will be able to receive some form of protection against unfair conduct by the illegal employer. THE PURPOSE OF THE LRA To advance economic development, social justice, labour, peace and the democratisation of the work place' and that would be achieved by giving effect to section 23 of the Constitution FOREIGN WORKERS The Immigration Act41 prohibits employment of an illegal foreigner.42 Any employer who knowingly employs an illegal foreigner or a foreigner in contravention of the Immigration Act, commits an offence,43 but an employer may not intentionally hire workers not authorised to work in terms of the Act in order to escape its obligations in terms of the employment contract.44 An employer who employs an illegal foreigner may not refuse to pay that worker on the basis that the worker is an illegal foreigner and the employer will not escape liability by relying on the illegal relationship. An illegal foreigner may still be able to enforce her/his contractual rights against the employer. EMPLOYMENT SERVICES ACT (ESA) The primary objective of the ESA is to promote employment and to regulate the employment of foreign nationals. The Act also aims to reduce unemployment and provide education and training to unskilled workers and work-seekers. The ESA provides for the establishment of the Public Employment Services ('PES' PROTECTION FOR FOREIGN WORKERS The ESA allows foreign employees employed without a work permit to enforce any claim they may have in terms of any statute or employment relationship against an employer or anyone who the law considers liable, if unfairly dismissed.48 The onus is on the employer to comply with relevant legislation when employing foreign nationals. The Act further prohibits employers to allow foreign nationals to: • perform work which they are not authorised to perform in terms of their permits, • engage in work contrary to the terms of their work permits, or • do work contrary to the worker's will. DEFINITION OF EMPLOYER For present purposes, an 'employer' may therefore be described as: (a) any person/body which employs any person in exchange for remuneration, and (b) any person who permits any person to assist her/him in conducting her/ his business. REGISTRATION OF LABOUR BROKERS A TES is required to register in accordance with regulations published by the MoL before it can conduct its business. LIABILITY OF A LABOUR BROKER AND A CLIENT Under the present LRA, an employee provided by a labour broker may hold the employer (in other words, the labour broker) and client jointly and severally liable if the TES contravenes: • a collective agreement concluded in a bargaining council that regulates terms and conditions of employment, • a binding arbitration award that regulates terms and conditions of employment, • the BCEA, or • a determination made in terms of the BCEA. Joint and several liability means that the employee can take action against the TES/labour broker or the client or even both. SPECIFIC DUTIES AND PROHIBITIONS: TES Compelling the TES to provide the temporary employee with written particulars of employment in line with the requirements of the BCEA, • prohibiting the TES from employing any employee on terms and conditions of employment in contravention of the LRA, any employment law, sectoral determination or collective agreement concluded in the bargaining council to which the client belongs. TYPES OF EMPLOYMENT SERVICES Public employment services, Private employment services. PUBLIC EMPLOYMENT SERVICES Will match workseekers with work opportunities; register workseekers, vacancies and other work opportunities; advise workseekers on relevant education and training; offer vocational and career counselling; assess workseekers to determine suitability, place workseekers, exchange information among labour market participants, for example, SETAs and private employment agencies. PRIVATE EMPLOYMENT SERVICES • May not charge a job applicant a placement fee unless lawfully permitted (this is in line with the Basic Conditions of Employment Amendment Act, which also prohibits a fee in exchange for employment) • May also not deduct any money from the employee's salary for her/his placement with a client • The agreement between the TES and the client must specify the remuneration and the TES' fee • The TES must keep a register of workseekers and the clients where they were placed • Any provision in breach of the above will be invalid and unenforceable EMPLOYMENT SERVICES BOARD Its function is to advise the MoL on various issues regarding a TES and protected work for people with disabilities PRODUCTIVITY SOUTH AFRICA Its objective will be to promote a culture of productivity in workplaces. Protected Employment Enterprises It will be responsible to promote work and employment opportunities for people with disabilities. EMPLOYMENT TAX INCENTIVE ACT (ETIA) The Act provides for subsidies to private sector employers who employ young people aged between 18 and 29. The aim is to support employment growth by activating the labour market for the youth. ETIA DEFINITION OF AN EMPLOYEE 'a natural person who works directly for another person; and who receives or is entitled to receive remuneration from that other person but does not include an independent contractor.' THE CONTRACT OF EMPLOYMENT In order for a contract of employment to be valid parties to the contract must have satisfied all the following common law requirements for the conclusion of a valid contract: the parties must agree, have capacity to enter into the contract, the contract must be lawful and possible to perform, and where the parties agreed on formalities, those formalities must have been complied wit DUTIES OF THE EMPLOYERS AND EMPLOYEES The duties of employers and employees flow from the contract of employment, from labour legislation, the common law and collective agreements. The primary duty of the employee is to make his or her services available to the employer and the main duty of the employer is remunerate the employee for making his or her services available to the employer. It is important to understand that it is thus not necessary for the employee to perform actual work in order to receive remuneration. Note the special instances where the employer will be required to provide an employee with work. THE DUTIES OF THE EMPLOYER 1. To remunerate the employee 2. Provide the employee with work (The duty to provide the employee with work also includes the employer's duty to receive the employee into service. The employer who fails to receive an employee into service is in breach of this common-law duty.) 3. To provide safe working conditions for employees (This duty arises from both common law and is enhanced and extended by legislation, such as the OHSA, MHSA and the EEA) 4. To deal fairly with employees (This common-law duty still applies to the employment relationship but when the employer breaches this duty the employee will probably not seek common law relief for breach of contract as there are other, more suitable measures) THE DUTIES OF EMPLOYEES 1.To render services to employers 2. To work competently and diligently 3. To obey lawful and reasonable instructions 4. To serve the employer's interests and act in good faith DOCTRINE OF VICARIOUS LIABILITY The doctrine of vicarious liability is regulated by the common law and not by labour legislation and may also impact on the employment relationship. According to this doctrine, an employer is liable for the unlawful or delictual acts of an employee performed during the course and scope of business. The doctrine of vicarious liability is based on the principle that the employer (who by its profitable operations creates a risk of harm to others), has to compensate those who suffer injury as a result of the wrongful conduct of its employee(s). Vicarious liability thus protects third parties. DOCTRINE OF VICARIOUS LIABILITY: REQUIREMENTS 1. There must be a contract of employment (employer/employee relationship), • the employee must have acted in the course and scope of employment. 2. The employee must have committed a delict (that is, a negligent or intentional unlawful action or omission causing a third party to suffer damages or personal injury). GENERAL CONTRACT PRINCIPLES • There must be agreement between the parties, for example, if an employer forces an employee to work, it will amount to slavery.13 The employment contract like any other contract is created through offer and acceptance. The contract arises when the parties agree about the essential terms of the contract. If an employee, for example, refuses to accept the employer's terms would mean that no agreement and no employment relationship is established. • The parties further need to agree about the work the employee has to do and the remuneration she/he will receive from the employer for that work. • The parties to the contract must have capacity to act, for example, a mentally impaired person or a minor will not be able to conclude a valid contract of employment. • The agreement must be legally possible, for example, it will not be legally possible to appoint someone as an assassin for your debt collection business. • Performance under the agreement must be physically possible, for example, if the employer appoints a personal nurse to care for her/him and the employer then dies, performance will no longer be physically possible. • If any formalities are prescribed for the formation of that particular type of contract or if the parties themselves have agreed about certain formalities, then those formalities must be satisfied, for example, the employment contract of a candidate attorney must be in writing and registered with the Law Society within two months after conclusion. RESTRAINT OF TRADE A restraint of trade clause is included in a contract of employment to protect the employer's interests during the employee's time of employment and after the employment relationship has ended. Remember, however, that the court will not enforce a restraint of trade against an employee where the employee can prove that the restraint is unlawful or unreasonable. Remember that there are factors that need to be taken into account when the reasonableness of a restraint of trade is considered. VALIDITY OF CONTRACT OF EMPLOYMENT The employer is obliged to provide to the employee in writing in terms of the BCEA. The information that must be given to the employee in writing includes the following: (a) the full name and address of the employer; (b) the name and occupation of the employee; (c) the place of work; (d) the date on which employment began; (e) the employee's ordinary days and hours of work; (f) the employee's wage; (g) the rate of pay for overtime work; (h) any other cash payments to which the employee is entitled; (i) any payment in kind and the value thereof; (j) the frequency of remuneration; (k) any deductions to be made from the employee's remuneration; (l) the leave to which the employee is entitled; (m) the period of notice required to terminate employment; (n) any period of employment with a previous employer that counts towards the employee's period of employment; and (o) a list of any other documents that form part of the contract of employment.15 REMEDIES FOR BREACH OF CONTRACT If the parties do not perform in terms of the agreement, it will constitute breach of contract in terms of common law. In the event of breach of contract, the innocent party has a choice, either to accept the breach and cancel the contract, or to compel the defaulting party to perform (called an 'order for specific performance'). In addition, the innocent party can claim damages. CHANGES TO CONTRACTUAL TERMS AND CONDITIONS OF EMPLOYMENT Terms and conditions of the employment contract can only be lawfully changed in the following ways: • By agreement between the employer and the employee or in line with the method prescribed in the contract of employment. • By means of a collective agreement between the employer and trade union(s),24 • By operation of law, for example, the BCEA,25 and • Through a sectoral determination issued by the MoLThe terms of the employment relationship is mainly contained in the employment contract. The employee and employer may, however, also be bound by other statutory provisions and applicable collective agreements. An employer may not unilaterally change terms and conditions of employment as that would amount to repudiation and breach of contract. A written contract of employment normally contains provisions on how parties can change the terms and conditions of the contract. THE BCEA (BASIC CONDITIONS OF EMPLOYMENT ACT) • Establishes and enforces basic conditions of employment, • Regulates the variation of such conditions by way of different mechanisms; • Gives effect to international standards for work by children; • Ensures decent work for all workers; and • Prohibits exploitative conduct by employers towards employees MINIMUM WORKING CONDITIONS ... BCEA - MAXIMUM WORKING TIME • A maximum of 45 hours a week. • If the employee works 5 days a week or less, he or she may not work more than 9 hours a day. • If the employee works 6 days or more a week, he or she may not work more than 8 hours a day (these hours include an hour lunch break). The Act requires employers to endeavour to reduce the maximum ordinary hours to 40 hours a week and eight hours a day, through collective bargaining and sectoral determinations. These hours may be extended by agreement by up to 15 minutes a day, but no more than an hour per week, if employees serve members of the public. BCEA - LEAVE The BCEA makes provision for a minimum of 21 consecutive (calen- dar) days paid vacation leave (ex- cluding public holidays) per year for most employees. ENFORCEMENT OF BCEA • By the Labour Court • By inspectors of the Department of Labour CORE BCEA TERMS • Maximum working hours • Provisions relating to night work • Provisions relating to sick leave • 4 months' maternity leave • A minimum of 2 weeks annual leave ALTERATIONS IN TERMS OF BCEA MADE BY • Collective agreements • Ministerial determinations • The contract of employment. SECTORIAL DETERMINATIONS ... BCEA - WAGES The BCEA does not contain provisions about minimum wages for employees. These are set by collective agreements concluded in bargaining councils and ministerial and sectoral determinations. Employers and employees will then be bound to pay these minimum wages. BCEA - NOTICE PERIODS A contract of employment for an indefinite period may be terminated by either the employer or the employee by giving notice of her/his intention to terminate the contract. Provides that a contract of employment must be terminated in writing and by way of a notice period of not less than: • One week, if the employee has been employed for six months or less, • Two weeks, if the employee has been employed for more than six months but not more than one year, • Four weeks, if the employee has been employed for one year or more, or is a farm worker or domestic worker who has been employed for more than six months. BCEA - SEVERANCE PAY When an employee is dismissed based on the operational requirements of the employer in terms of the LRA,the employer must pay the employee severance pay equal to at least one week's pay for each completed year of continuous service with that employer. BCEA - CERTIFICATE OF SERVICE An employer is required to provide an employee with a certificate of service when employment comes to an end. Such certificate may state, amongst other things, the date of commencement of work, the job description and the remuneration at the time of termination. BCEA - PAYMENTS OF CONTRIBUTIONS TO BENEFIT FUNDS An employer is not entitled to make any deductions from an employee's salary unless an employee agrees thereto or the deduction is justified in terms of a law, collective agreement, court order or arbitration award. An employer may deduct money from the employee's salary to reimburse an employer for loss or damage only if: • The loss or damage occurred in the course of employment and was due to the fault of the employee; • The employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; • The total amount of the debt does not exceed the actual amount of the loss or damage; and • The total deductions from the employee's remuneration do not exceed one-quarter of the employee's remuneration in money BCEA - PROHIBITION OF FORCED LABOUR Forced or compulsory labour is prohibited. Contravention of this section constitutes a criminal offence. PROHIBITION OF EXPLOITATIVE PRACTICES BY EMPLOYERS TO SECURE WORK BY EMPLOYEES Exploitative practices (ill-treating/taking advantage of employees) by employers are prohibited. For example, employers may not: • Require or accept any payment by (or on behalf of) an employee or potential employee in respect of employment or the allocation of work, • Require employees to purchase goods, services or products from the employer or from any person nominated by the employer in order to secure work INSPECTORS The BCEA provides for the appointment of labour inspectors who must monitor and enforce compliance with the BCEA (and other employment laws such as the OHSA. Inspectors, who have reasonable grounds to believe that employers have not complied with the Act, may secure a written undertaking from an employer to comply with a particular provision.37 The Director-General may apply to the Labour Court for the written undertaking to be made a compliance order and to set a specified period within which the employer must comply with such order. VARIATION BY WAY OF COLLECTIVE AGREEMENT A collective agreement between trade unions and employers may change conditions of work, provided that such collective agreement is consistent with the purposes of the Act. VARIATION BY WAY OF MINISTERIAL ADMINISTRATION Primarily replaces or excludes basic minimum conditions of employment in respect of any category of employees or category of employers, but generally does not set minimum wages. It must be made on advice of the ECC. VARIATION BY WAY OF SECTORAL DETERMINATION Another way of establishing/variating conditions of employment by the MoL is by way of a sectoral determination for one or more sector or area, not covered by any other collective agreement. There is for example a ministerial determination for small businesses whereby certain minimum conditions of service have been relaxed for employers with fewer than ten employees. EQUALITY '(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures, designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination, may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3) ELIMINATION OF UNFAIR DISCRIMINATION Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. PROHIBITION OF UNFAIR DISCRIMINATION (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground; (2) It is not unfair discrimination to — (a) take affirmative action measures consistent with the purpose of this Act; or (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. (3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).' FORMAL EQUALITY Focuses on protecting individuals against discrimination. It views individual ability and performance as the only factors relevant for achieving success in society. SUBSTANTIVE EQUALITY Recognises that opportunities and patterns of behaviour towards individuals are determined by their membership of a group(s) and are often to their disadvantage. Affirmative action measures are required to correct imbalances where disadvantage and inequality exist. DIFFERENTIATION People in the workplace are frequently treated differently, for example, when people apply for promotion. Differentiation is acceptable if it is based on valid grounds and serves a legitimate purpose. Differentiation in pay levels does not in itself constitute discrimination if it is based on acceptable reasons such as expertise and skills. DISCRIMINATION This is a particular form of differentiation based on an unlawful ground, even if there is not a specific intention to discriminate. Intention is relevant when the court decides on the relief to be awarded. Direct or indirect. DIRECT DISCRIMINATION This is a particular form of differentiation based on an unlawful ground, even if there is not a specific intention to discriminate. Intention is relevant when the court decides on the relief to be awarded. INDIRECT DISCRIMINATION Often disguised and hard to detect. It occurs when criteria that appear to be neutral, negatively and disproportionately, affect a certain group. SPECIFIED, UNSPECIFIED/UNLISTED AND ARBITRARY GROUNDS OF DISCRIMINATION The EEA prohibits unfair discrimination in any employment policy or practice. There are 19 grounds listed in section 6(1) but the list is non-exhaustive. This means that it is possible that other unspecified/unlisted grounds for discrimination (not contained in the list) can exist. This is similar to the nonexhaustive list of constitutional grounds for prohibition of discrimination. APPLICATION OF THE EEA The EEA, in giving effect to the equality provisions of the Constitution, promotes the achievement of equality in the workplace and must be interpreted in accordance with ILO Convention 111 ratified by South Africa. CONSTITUTION: RIGHT TO FAIR PRACTICE • is wide, and • protects 'everyone', in other words, also workers who are not employees in terms of the LRA. Surrounding circumstances will be taken into account in determining whether there was an infringement of the right to fair labour practices LRA: PROTECTION AGAINST UNFAIR LABOUR PRACTICES • is limited to the list of actions included in the definition of an unfair labour practice, • protects employees only against specific actions by employers, and • an employee cannot commit an unfair labour practice towards an employer; only an employer can commit an unfair labour practice towards an employee. SECTION 186(2) UNFAIR LABOUR PRACTICE 'An "unfair labour practice" means any unfair act or omission that arises between an employer and an employee involving — '(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act [26 of 2000] ... on account of the employee having made a protected disclosure defined in that Act.' LIMITATIONS OF UNFAIR LABOUR PRACTICE PROTECTION (1) The definition makes provision for the protection of employees against unfair labour practices committed by employers. An employee cannot commit an unfair labour practice. LIMITATIONS OF UNFAIR LABOUR PRACTICE PROTECTION (2) Protection against unfair labour practices refers to employers and employees only. This means that an unfair labour practice can, in terms of the LRA, be committed only within the ambit of an employment relationship. LIMITATIONS OF UNFAIR LABOUR PRACTICE PROTECTION (3) The list of unfair labour practices is contained in section 186(2). This is a 'closed list' which means that if the conduct of the employer does not appear in the list of section 186(2), the conduct cannot amount to an unfair labour practice. THE UNFAIR CONDUCT OF THE EMPLOYER RELATIING TO PROMOTION The protection relating to promotion is thus enjoyed by existing employees. Promotion falls within the managerial prerogative. The employer will probably promote the most suitable candidate after a fair process has been followed. An employee does not have any legal entitlement to be promoted to a higher post. In order for a promotion to be fair, an employer must act both procedurally and substantively, fair. If an employer cannot justify its decision not to promote, or if the process leading to the promotion proves to be seriously flawed, the possibility that the employer committed an unfair labour practice may arise. THE UNFAIR CONDUCT OF THE EMPLOYER RELATING TO DEMOTION This is allowed as long as the action is taken in accordance with a fair procedure. The employer has to consider the best possible option to avoid dismissing employees; demotion can thus be an option avoiding dismissal. Demotion could also be fair as a disciplinary penalty, if it is based on a valid reason (for example, as an alternative to the dismissal of an employee found guilty of misconduct) and if it is done in accordance with a fair procedure (for example, a disciplinary hearing was held). THE UNFAIR OF CONDUCT OF THE EMPLOYER RELATING TO THE PROBATION The purpose of probation is to afford an employer the opportunity to evaluate an employee's performance before confirming the appointment. Probation should not be used for the wrong purpose, for example, to deprive employees of the status of permanent employment. THE CODE: DIMISSAL Also deals with probation and provides guidelines for the fair treatment of employees on probation. Non-adherence to these guidelines will amount to unfair conduct with regards to probation. Sets the requirements for a fair probationary period as follows: • the period should be determined in advance, and • the period should be of a reasonable duration, determined with reference to: - the nature of the job (for example, a shorter probationary period would be required for a messenger/clerk, while a manager may be required to serve a longer probationary period), and - the time it would take to determine the employee's suitability for continued employment.