Putting staff on Probation
Employers can put their employees on a probation period (also known as a probationary period) to assess if employees are suitable for the role and business. The employer decides on the length of the probation period. It can range from a few weeks to a few months at the start of employment.
Employee entitlements on probation
While on probation, employees continue to receive the same entitlements as someone who isn't in a probation period. If hired on a full-time or part-time basis, an employee 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 employment ends and have their unused accumulated annual leave hours paid out.
Minimum employment terms
While the relevant Act, Fair Work Act 2009 does refer to concepts such as unfair dismissal this does not mean that a staff member cannot be dismissed. During or after a term of probation a staff member may be dismissed.
The act does not refer to probation it refers to a minimum employment term, and this minimum term overrides any actual or implied term in an employment contract.
Therefore, employees only become protected from unfair dismissal after they have completed their minimum employment term. The minimum term differs depending on the number of employees of the company.
- The term is 12 months for companies with fewer than 15 employees
- The term is 6 months for companies with greater than 14 employees
This means that even if the employment agreement states that the term of probation is 3 months the minimum term for the purposes of unfair dismissal is 12 months for small companies and 6 months for larger companies as noted above. This means that employees are protected from unfair dismissal after 12 months.
Lawful or Unlawful dismissal
This does not mean that a staff member cannot be deemed to be unlawfully dismissed before either term. Reasons for unlawful dismissal that are not moderated by term include on the basis of a protected attribute, because of taking an action consisted with lawful rights, such as joining a union.
Often there are a number of lawful reasons fore the dismissal of an employee.
These include poor punctuality, or the inability to follow reasonable instruction for example.
During the first 12 months of employment a minimum of 1 week must be provided as notice in the event of dismissal. This does not apply to casual staff or non full time staff.
Think a mistake might have been made in relation to an entitlement?
Mistakes can happen. The best way to fix them usually starts with talking.
Check out the Fair Work Help resolving workplace issues section for practical advice on:
- figuring out if a mistake has been made
- talking to your employer or employee about fixing it
- getting help from Fair Work if you can't resolve it.
Updated: 23rd October, 2018