Ubuntu Education Fund v Paulsen N.O. and Others

The appellant, a non-profit organisation, employed the fourth respondent, Ms Zandile Sonyaya, as a supply chain coordinator from 18 August 2014 on a six-month probationary contract. Her role involved procurement management with four key performance areas (KPAs). Due to poor performance, her KPAs were reduced to one, additional support was provided, and multiple performance meetings and appraisals were conducted. Despite guidance, counselling, and assistance, Sonyaya consistently underperformed, scoring below 50% in five formal performance appraisals. The probationary period was effectively extended beyond its original end date to complete performance evaluations. Following a poor work performance hearing, Sonyaya was dismissed on 13 March 2015. She referred an unfair dismissal dispute to the CCMA, where the commissioner found the dismissal substantively unfair and ordered retrospective reinstatement, holding that she had become a permanent employee after the probation period. The Labour Court upheld the award. The employer appealed to the Labour Appeal Court.

The appeal was upheld. The CCMA award dated 8 October 2015 was reviewed and set aside and substituted with an order that the dismissal of the fourth respondent was substantively and procedurally fair. No order as to costs was made.

The case clarifies that probationary employment does not automatically convert into permanent employment upon expiry of the stated probation period where performance assessment is ongoing. It affirms an employer’s right to extend probation implicitly to complete performance appraisals and reinforces the application of a lower standard of substantive fairness for dismissals during or at the end of probation under Item 8 of Schedule 8 to the Labour Relations Act.