Probation periods are often implemented at the beginning of a new employment relationship. This allows the employer and the new employee to work together for a period of time to see if they are suitable for the role they have been hired to do. Keep reading this Legal Kitz blog if you would like to read more about employment probation periods.
Does a new employee have the same entitlements while on probation?
The new employee will continue to receive employment entitlements and these entitlements can be found in the National Employment Standards. For example if the new employee who is hired on a full-time or a part-time contract, then this employee is entitled to access and use their paid leave entitlements, including annual leave and sick leave.
What is provided in the Fair Work Act?
Within the Fair Work Act 2009 (Cth), the term ‘probation’ is not used. Because it is a contractual term, there is no law that provides what is and is not a period of probation. However, in general, it refers to the trial period at the beginning of full-time or part-time employment, referred to within the employee’s contract.
The Fair Work Act provides a minimum employment period which is determined by the length of employment and the business size. The employer will decide the length of the employee’s probation period. It is most commonly between 3 – 6 months from the start of employment. Within this minimum engagement period, the employee can be terminated with written notice in accordance with the National Employment Standards.
When an employee does not move to pass the new hire probation period, this employee must still:
- Receive notice of the end of employment; and
- Have any accumulated annual leave that has not been used, paid out.
Can the employer extend a probation period?
If you are an employer and you are unsure if the new employee is suitable, you may choose to extend their probation period. However, the employer must have an agreement with the employee, or there must be terms within the employment agreement that allows for an extension of a probationary period. In the case there is an agreement between the employer and the employee, the probation period can only be extended to the agreed length.
If the probation period is extended beyond the stated minimum employment period and then the employee is dismissed. The employee can have access to unfair dismissal claims.
How to prevent unfair dismissal allegations?
When the probation period is within 6 months for larger businesses or 12 months for small businesses with less than 15 employees at dismissal, the new employee is unlikely to succeed in an unfair dismissal claim.
However, any employee can initiate a claim with a general protection regardless of their length of employment, when the dismissal is caused by an employee’s race, age, gender, etc. An employee can also initiate a claim when the employee exercised a workplace right. It is advised that an both employers and employees seek legal advice in regard to employment rights prior to dismissal or making an unfair dismissal claim.
Benefits of conducting performance meetings
Throughout this period, it is recommended that the employer organise regular meetings with the employee to review their performance. This provides the employer with the opportunity to resolve any issues whilst providing the employee with the necessary support. Overall, this can be very valuable for both parties to understand what their expectations are and what is required to do the job well.
Legal advice
If you are concerned about your employment rights as an employee or employer; at Legal Kitz, our employment specialists can assist you with implementing best practice methods to ensure that your business remains compliant with any new or amended employment entitlement legislation and regulations. You can contact Legal Kitz via email at [email protected] or by phone at 1300 988 954.
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