Terminating Staff During Probation
Ordinary disciplinary procedures don’t apply for staff under probation. 
Probation periods in employment contracts
Written employment agreements often provide for a probation period of 3-6 months to assess a person’s performance in their new role. Employment can be terminated at any point within this period without risk of an unfair dismissal application.
Employment contracts commonly provide for a shorter notice period (1 week) during probation.
What does the law say?
But what many employers don’t understand is that there is no legal requirement to have a probation period.
Probation replaced by a statutory Minimum Employment Period
The Fair Work Act (Act) replaced the term probation with the need for an employee to serve a minimum employment period before they are eligible to lodge an unfair dismissal claim.
The minimum period of employment in Australia is:
- 12 months for employees of a small business (a small business is defined as any business with fewer than 15 employees); and
- 6 months for employees of large businesses.
So, for example, in cases where a 3 month probation period has expired, or where a written contract was not entered into, an employer can still terminate an individual’s employment within the minimum employment period if they are unhappy with the person’s performance or conduct.
General Protections
There are situations where it will be considered unlawful to terminate an employee. Employers must not dismiss an employee during probation (or at any time for that matter) for reasons prohibited under the General Protections provisions of the Fair Work Act. These include termination for exercising workplace rights, union membership, temporary absence due to illness or injury, or due to a protected attribute such as age, sex, race, religion and pregnancy.
Do you still need a probation period?
Whether your employment contract provides for a probation period is a matter for your business. The important point is that where the probation period extends beyond the minimum employment period, the employer will no longer be exempt from an unfair dismissal claim.
Apprenticeships and traineeships
Probation periods are still relevant to apprenticeships and traineeships and are dictated by the relevant state or territory law or government authority.
Disclaimer: This post is intended to provide general information to National System employers in relation to a legal topic. It does not constitute legal advice and should not be relied upon as such.