Good day. This is an info request to assist you better. Please continue on this thread.
Do you have a written disciplinary code in place? Does your employment contract say something about the amount of warnings a person is to receive before she is going to get fired?
Remember that, even if you issue a warning, you still have to follow a fair procedure. This does not, necessarily, have to be a formal disciplinary hearing, but the employee must be given an opportunity to state her case to avoid receiving the warning. If there is a reasonable explanation for the conduct and no warning is warranted, then the employer should not issue a warning. If you don't follow a fair procedure before issuing the warning, you might as well chuck the warning in the fire.
I suggest that you do get a formal disciplinary code drawn up, in which offences are described in broad terms or in detail if you want and next to the offence, you list the punishment, i.e warning, immediate dismissal etc. That would be handy for future use.
When you want to dismiss an employee that is under probation on operational requirements pertaining to her ability to do the job, you also, still have to conduct a disciplinary hearing. You would have to show the presiding officer that you have done your part in trying to get this employee up to speed and that, despite that, she is still not where she should be three months on in the job.
If, however, the employee is found guilty of misconduct on a dismissable offence within the three month period, there is nothing that prohibits you from firing her within the three months. So, for instance, her lying and staying away from the job etc would be things you would already be able to discipline her on and that counts towards the warnings etc.
IF it is on her contract that you may dismiss her on two warnings, then you would be able to dismiss her when you have issued two warnings, but please, have regard to my comments regarding fair procedure above.
If she goes to the CCMA (and she probably will, regardless of whether you use fair procedure or not) for unfair dismissal and you have not followed fair procedure, the merits on why you fired her, would not count.
Understood about fair procedure but if she is on a 3 month probation and she is not performing now can I dismiss her after the 3 months saying that she is not performing she has had 2 warning and is still not doing what was shown to her, surely this must be considered fair!!
Well, these are the facts that you have to present to whomever is the presiding officer at her disciplinary hearing. Should the presiding officer find that any one of those or in combination thereof, this is dismissable, then that would be considered fair. It is in the descretion of the presiding officer whether she is to be dismissed or not.
On your version, dismissal seems fair.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).