Probation periods have regularly been used to assess whether an employee is suitable for the role they have been hired for. However, with the everchanging complicated industrial landscape employers regularly get caught out incorrectly using probation periods to terminate employees.
Employers may be surprised to know that probation periods are not provided for in the Fair Work Act. What is covered by the Fair Work Act is the minimum employment period, which is six months; or 12 months for small business employers.
This provision allows an employee to make an application for an unfair dismissal remedy only if they have completed the minimum employment period.
The minimum employment period means that an employer is protected from an employee lodging an unfair dismissal claim if the employee has not completed the minimum employment period. This means that should an employer terminate an employee before 6 months (or 12 months for a small business) the employee cannot lodge an unfair dismissal claim.
Given the above protections for employers, it makes sense for an employer to align the probation periods with the minimum employment period. This is because if an employer terminates an employee during the probation period, the employer is protected from an employee lodging an unfair dismissal.
Where employers get caught out is assuming that terminating during the probation period does not require procedural fairness. This is incorrect. If an employer determines that an employee is not suitable for the role and needs to terminate during the probation period, the employer must still comply with procedural fairness principles. Despite an employer being protected from an unfair dismissal, an employee is able to lodge a General Protections claim, even if they have not met the minimum employment period. General Protections claims protect adverse action, coercion, undue influence or pressure and misrepresentation where there is affect an employee’s workplace right.
Don’t get it wrong
When considering terminating any employee, employers must pay careful consideration to procedural fairness. Procedural fairness will vary for each individual situation.
Employers should use the probation period to their advantage to assess whether an employee is right for the role whilst also giving the employee every opportunity to excel in their new role. Any performance and behavioural issues should be discussed with the employee and ideally documented in writing. A good step for an employer to take is implementing a probation plan which might include the following:
How can we help?
Don’t get caught out with a timely a costly claim in the Fair Work Commission! If you are uncertain about how to implement and manage a probation period, need to manage performance in the workplace or undertake a disciplinary process including termination of employment, our team of industrial relations experts are just a phone call away, contact our Business Advice Hotline on (08) 8300 000 (select option 1).
If you would like to find out more about performance management and termination check out our free webinar on 12 September here .
