Fair Work Act: Understanding the Employment Process 

The concept of a probationary period does not exist under the Fair Work Act 2009 and instead reference is made in the Act to an employee's 'minimum employment period', a clear understanding of this is important when dealing with the employment process. The minimum employment period for an employee is now either 6 months or one year, depending on the size of the employer. Where an employer employs fewer than 15 employees (which is calculated by counting all permanent employees plus any regular and systematic casual employees) the business is deemed a 'small business employer' and its employees will have a minimum employment period of 1 year from their start date.

By comparison, the employees of an employer which employs 15 or more staff will have a minimum employment period of 6 months from their start date. The importance of the minimum employment period is that once an employee reaches this length of service they have the right to bring an unfair dismissal claim against the employer if a termination is not dealt with appropriately and in accordance with procedural fairness.

By contrast, a probationary period in the employment process will usually last for a period of 3 months and is something that the employer and employee agree to implement in the contract of employment. The purpose of the probationary period is for both the employer and employee to assess how the position is going and whether the employee needs to be given additional guidance so that they can fulfil the role to the standards expected.

The end of the first 3 months is a useful milestone in the employment process in which to review the employee's progress. If they have not been performing to the standards expected or they have not improved when given directions, you may decide to terminate the employee's employment at this stage. As the decision to dismiss is made before the employee reaches their minimum employment period of either 6 or 12 months service, there is minimal risk of an unfair dismissal claim being lodged by the employee.

The minimum notice period of 1 week, as provided for in the National Employment Standards (NES), should be given to permanent employees of a termination within the first year of their employment and the existence of the probationary period does not affect this minimum notice period.

It is recommended a probationary period be 3 months in length, as this is deemed an appropriate length of time in which to assess an employee's performance. A probationary period of more than 3 months is generally deemed unreasonable; however, a longer probationary period may be relevant for very senior roles or positions which involve complex or diverse duties.

If an employee has not been performing to the standards expected and at the 3 month probationary review you believe the employee has potential to improve if given more time, fair work you can continue to monitor performance on an ongoing basis and can still dismiss the employee if their performance does not improve down the line.

When going through the employment process with an employee, it is sensible to state the employees' minimum employment period of 6 or 12 months, as applicable, and to also state that the employee will be subject to a 3 month probationary period, after which their performance will be assessed. It should be clarified that the employee's minimum employment period is not affected by the existence of the probationary period, and that the two run concurrently.

For more assistance and for more help we are available Fight for your rights under the law Unfair Dismissals Australia is owned and operated by AWDR Australia’s leading workplace representatives. We specialize in the resolution of workplace disputes and unfair dismissals. Our services also include workplace bullying, sexual harassment and discrimination. If you have an enquiry please take the time to get in touch with us here:  https://unfairdismissalsaustralia.com.au/