When a new employee is hired, an employer can put them on a probation period to assess if employees are suitable for the role and business. The employer will decide on the length of the probation period which can range from a few weeks to a few months at the start of employment.

However, what happens if an employer is undecided about an employee’s performance at the end of their probation period? Can a probation period be extended, and can the employee claim unfair dismissal if their employment ends due to unsatisfactory performance?

 

The answer to these questions comes in a few parts:

  • The Fair Work Act does not recognise or refer to a ‘period of probation’ in relation to unfair dismissal law but rather a ‘minimum employment period’. This period is prescribed as six months (where an employer employs 15 employees or more) or 12 months (where the employer employs fewer than 15 employees).
  • This means that an employee cannot claim unfair dismissal unless they have completed the relevant minimum employment period.
  • The purpose of a probation period is to enable an employer and an employee to determine their suitability to a position, and can be extended at the employer’s discretion.
  • The minimum employment period cannot be extended by agreement of the parties.

 

The bottom line: A probation period can be extended if the employer decides it is required. However, if an employee is then terminated after they have completed the minimum employment period (regardless of whether it is in the probation period or not) they can claim unfair dismissal.

For advice regarding probation periods, minimum employment periods or unfair dismissal, please contact us on (08) 9316 9896 or enquiries@processworx.com.au.

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