Probation periods can be found in most employment contracts – but they’re frequently misunderstood and often put employers at risk.

Generally, probation periods in an employment contract are stated as a term of three or six months. Many employers believe that, during this time, the employer may terminate the contract on a limited period of notice, such as one week and do so without reason.  If the employee passes the probation-period, then ‘normal’ disciplinary actions apply together with a longer notice period.

This is an ‘HR Myth’.  Apart from the added security of a shorter period of notice during the probation period, there is no ‘free-for-all’ within this period.

Probation Period vs Qualifying Period

Probation Periods are often confused with the Fair Work ‘qualifying period’ for unfair dismissal protection, which is normally 6 months (12 months for a small business with under 15 employees)

Once your employee passes the qualifying period, he or she is protected by unfair dismissal laws and can successfully apply to FWA if you have not followed a fair dismissal process and/or have justifiable reasons for terminating their employment.

General Protections

Whilst unfair dismissal laws only kick in after 6 or 12 months, there is no ‘time served’ requirement for a general protection claim. This means that any employee, at any time can allege that the employer took ‘adverse action’ against them based on a protected attribute, such as discrimination, taking sick leave or becoming pregnant.

So now what?

As an employer, don’t assume you can act without consequence within a probationary period!

Always provide legitimate reasons for dismissal regardless of the service period and apply a fair process, even if you don’t think you’re required to.

Does your employment contract and/or processes fit the description of the example above?           We can help! 

Contact us today for a free consultation.