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performHR Knowledge Centre

Tools and information for Business Leaders to Lead, Grow, and Protect their organisations

Written by The performHR Team
on March 25, 2019


What is a probationary period? 

A probationary period is a length of time that a new starter is subject to, to assess their suitability for ongoing employment. This is often six months to match the minimum employment period but can be any length of time that is specified by the employer.What is the minimum employment period?

The Fair Work Act 2009 names the minimum employment period as six months for larger employees or twelve months for small businesses (15 or less employees). After this period, employees can lodge for unfair dismissal with the Fair Work Commission.

Can I extend the probationary period?

As the employer, you dictate how long probationary periods can last. However, most organisations align probationary periods with the minimum employment period. Extending probation beyond the minimum employment period will mean that you will need to provide reasoning as to why you are terminating employment and ensure that the termination does not meet the requirements for unfair dismissal.

Does the probationary period restart if I promote an employee?

As above, you can implement a probationary period for any amount of time. However, if it is outside the minimum employment period, you are not protected against unfair dismissal claims.

What are the potential risks that an employee could take against the employer within the minimum employment period expires?

Although an employee cannot make a claim for having their employment terminated during the minimum employment period of 6 months.  The employee could have a cause of action under general protections. However, this is only the case where an employee claims that the employer has taken adverse action against the for exercising a workplace right.

What is a workplace right?

A workplace right can take many different forms and includes:

  • Receiving entitlements and benefits under a workplace law, a workplace instrument or an order made by an industrial body
  • Making a complaint or inquiry about employment
  • Engaging with an industrial body e.g. becoming a member or representing a Union
  • Being protected from discrimination

For a complete list of general protections, please head to the Fair Work Commission site HERE

Why is it important to use the probation period to ensure the employee is the right fit for your workplace?

A well-structured probationary period process allows for continuous feedback, support and training to ensure that the employee is set up for success from their first day. It also provides a very clear deadline around competency level and skill at the end of the period, which sets up clear expectations for both parties. With this ongoing process, any issues or problems that arise will be well documented. This allows for an easier communication path with the employee.  It shouldn’t be a surprise to the employee that their performance or attitude is not up to scratch.  The employer can also demonstrate that a fair reasonable decision has been made to end  the employees employment within the minimum employment period.

General Protections Claim: A case from the Federal Court of Australia

A Registered Nurse filed an adverse action complaint against an Aged Care Facility citing that she had received adverse treatment, being termination of employment, by the CEO and Manager of the Facility.

The Registered Nurse claimed that she had been terminated for exercising a workplace right as she had claimed workers compensation for an allergy to the resident cat. The Registered Nurse had also made a complaint to the relevant Workplace Health and Safety authority in regarding to the facilities safety.

With cases such as this, the onus lies with the organisation to disprove the allegations made. In this instance, the organisation was able to prove that the Registered Nurse was terminated due to medication error rather than the reasons stated above.

This case, although a successful outcome for the organisation, really highlights the need for solid HR processes. Although this employee had been employed for some time with the organisation, this case demonstrates the type of scope that a general protection claim can be made. 

Read the complete decision HERE


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