Probation
Probation is a period of time at the beginning of an employment relationship where employers have the opportunity to evaluate the capabilities of the employee in their hired role.
This period ranges from 3 months to 6 months.
While on probation, employees continue to receive the same NES entitlements as someone who is not on probation. Part-time and full-time employees on probation is entitled to accrue and access their paid leave entitlements, such as annual leave and sick leave.
If an employee doesn’t pass their probation, they are still entitled to:
- receive notice when their employment ends
- have their unused accumulated annual leave hours paid out.
Minimum Employment Periods
A probation period is not to be confused with the minimum employment period. A minimum employment period is a period an employee must be employed before they are able to make unfair dismissal claims.
The minimum employment periods are:
- 6 months
- 1 year – where the employer is a ‘small business’ (business that employs less than 15 part-time and full-time employees)
Can we extend probation periods?
You may only extend an employee’s probation according to what has been agreed to in the employee’s employment contract, and there is mutual agreement. If the extension of the probation is successful, the extension does not exclude employees from making an unfair dismissal claim if they have completed the minimum employment period.
Terminating an employee during their probation period
During an employees’ probation, employers are protected from unfair dismissal claims but not general protections claims, as there is no minimum employment period to serve for the latter. If an employee is terminated before completing their probation or their minimum employment period, they are not able to pursue an unfair dismissal claim, but they are able to pursue a general protections claim.
Hence it is very important that employers terminate employees on valid reasons and inform employees with supported evidence. Some valid reasons for termination include:
- Capability
- Performance
- Misconduct
- Redundancy
For more information on Probation: https://www.fairwork.gov.au/starting-employment/probation
For more information on Minimum Employment Period: https://www.fwc.gov.au/what-minimum-period-employment