Termination under Probationary Period

Employers often believe that as long as their employees remain in their probationary period of employment, they can essentially terminate the employee’s tenure during the said probationary period. Surprisingly and since July 2020 this has been proven to be incorrect.

It is quite common for a new employee to be given a probationary period of between 3 and 6 months after commencement of any role. There are some occasions where the employer may seek to extend the employee’s probationary period. 

However, employers should be warned that under the Fair Work Act, an employee is protected by unfair dismissal protections if they have been working continuously for periods between 6 and 12 months in respect to small business enterprises.

The relevant decision regarding probation and protections afforded to any employee in a small business situation is Werner v St Michael’s Association [2020] FWC 2896. The summary of the facts are:

  • Employee’s probationary period was 6 months;
  • Employer extended probation to 9 months due to poor performance;
  • During the extended probationary period, employer terminated the employee’s employment without notice, without giving the employee any opportunity to respond, did not allow a support person or prior formal warnings as to poor performance which the employer ought to have considered and adhered to in respect to the termination of employment;
  • Employer had sought legal advice and was advised if the employee remained in the  probationary period termination without notice could occur -The Fair Work Commission made it clear that the basis of this advice was unsound and that as long as an employee continues employment past a period of 6 month, probation or not, they are protected under Unfair Dismissal Protection.
  • Employee was awarded monetary remedy for unfair dismissal.

If any employers are contemplating on extending their employees’ probationary period, we strongly recommend that you consult us to ensure you are fully aware of the risks that follows such extension.

Should you believe the above scenario applies to you, please contact SLF Lawyers.

Article written by Gus Hu of our Brisbane office.

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