PROBATIONARYEMPLOYMENT

letting go can be easier

than holding on

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CONTENTS04 WHAT IS PROBATIONARY EMPLOYMENT?05 CAN A PROBATIONARY PERIOD BE EXTENDED?06 HOW LONG IS A PROBATIONARY PERIOD?07 DISMISSING DURING PROBATION08 HOW MUST YOU GIVE NOTICE TO AN EMPLOYEE ON PROBATION?09 WHEN YOU CAN’T DISMISS10 OUR CONTACT DETAILS11 ABOUT FRESH HR INSIGHTS PTY LTD12 ABOUT PAULETTE

What is Probationary Employment? 4

WHAT IS PROBATIONARYEMPLOYMENT?

A probationary period is a period of time (i.e. 3 months), when an employee is first employed, and allows either the employer or the employee to terminate the employment for any reason.

The employer decides on the length of the probation period. It can range from a few weeks to a few months at the start of employment.

The purpose of a probationary period is for both parties to decide whether the employee is suited to the position and/or employer’s business. ‘Trying out the Employment’

A ‘probationary period’ is created by a written employment agreement, and therefore, if no written employment agreement exists, the employee’s employment will not be subject to a probationary period.

Regardless of whether or not a new employee’s employment is subject to a probationary period, under the Fair Works Act, an employer can still terminate an employee’s employment for any reason within a ‘minimum employment period’ without unfair dismissal laws applying. The minimum employment period is:

• For an employer that employs less than 15 employees - the period is 12 month• For an employer that employs 15 or more employees - the period is 6 months

Note that the ‘prohibitive reasons’ for termination under unlawful termination laws still apply during the minimum employment period (see “Common Law Requirements”).

TIP: Employing someone on a probationary period or trial basis reflects a mutual understanding between you and the employee about the nature of the particular employment.

Probationary employment typically involves:

• A probationary period, usually starting at the commencement of employment with the employer, in the role

• A less onerous notice requirement to end employment during the probationary period

Can a Probationary Period Be Extended? 5

CAN A PROBATIONARY PERIODBE EXTENDED?

To remove a worker from your workplace you will need to follow a fair and reasonable approach. We STRONGLY recommend you consult with Fresh HR Insights BEFORE

conducting any confirmation or conversations on termination .

There is no law determining the length of a probationary period, however, there is an expectation that the employer will be reasonable.

It is typical for a probationary period to last no longer than six months, and three months where an employee is moving to a new post internally.

The outcome of the probationary period can strongly influence the employee’s opportunities, especially with regards to raises, promotions or other work positions.

If you have less than 15 employees, extending a probationary period past 12-month is pointless, as the employee will have their unfair dismissal rights and can lodge a claim with Fair Work.

If you have more than 15 employees, extending a probationary past 6-months is pointless, as the employee will have their unfair dismissal rights and can lodge a claim with Fair Work.

How Long is a Probationary Period? 6

HOW LONG IS APROBATIONARY PERIOD?

Probationary periods are regulated by an appropriate clause in a written employment agreement/contract or letter of appointment.

Probationary Period

Unless otherwise expressly agreed in writing, the first three (3) months of the employee’s employment with the employer are probationary (‘the probationary period’). This probationary period allows the employee to evaluate the position and enables the employee’s manager to assess the employee’s suitability and competency for the position. The employee will be advised, if the employee has successfully completed the probationary period.

The employee’s ongoing employment depends upon the successful completion of the probationary period.

Either party may terminate the employment at any time during the probationary period by giving 1 weeks’ notice or payment in lieu of notice.

Provision of a probation period may also be made in an enterprise agreement or a modern award.

Note: There is legal requirement to impose a probationary period in writing or as a term of an employment contract.

You can say to an employee who has just started employment in a role, “You will be on a trial for 6 months during which time your suitability for ongoing employment will be assessed.”

You can even state to that employee after 6 months, “We are still not sure, so we are extending the trial by a further 3 months.”

CAUTION: If your probationary period is longer than the minimumemployment period unfair dismissal laws will apply to the employee afterthe minimum employment period – despite probation.

The usual period for probation is three months. However, because employees of non-excluded employers must serve a minimum employment period of either 6 or 12 months depending on the size of the employer before they can commence an unfair dismissal claim, the probationary period can typically be for 6 to 12 months.

Dismissing During Probation 7

DISMISSING DURINGPROBATION

When working out whether the minimum employment period has expired, you calculate the period of employment as at the earlier of:

• At the time when the person is given notice of the dismissal• Immediately before the dismissal

You include:

• Periods of paid and unpaid leave• Prior periods of casual employment that were immediately prior (or continuous)

to permanent employment• Prior continuous periods of employment with associated entities• Prior periods of employment where there is a transfer of business under the FW

Act

How Must You Give Notice to an Employee on Probation? 8

HOW MUST YOU GIVE NOTICETO AN EMPLOYEE ON PROBATION?

Notice of employment termination must:

• Be in writing• State when the termination will take place, which cannot be before the notice is

given

TIP: While the termination notice does not need to specify an actual date of termination, the date must be ascertainable from the notice. A reasonable person in the position of the recipient of the notice who had knowledge of the background of the dealings between them and the employee must be able to work out the last day of their employment.

A dismissal cannot take effect for the purpose of the Fair Work Act before it is communicated to the employee. The notice may be given to an employee by:

• Delivering it personally• Leaving it at the employees last known address• Sending it by pre-paid post to the employees last known address

For the purpose of the minimum employment period, the time when the person is given notice of the dismissal is a time when the notice is given in accordance with the requirements of the Fair Work Act.

CAUTION: You cannot impose a requirement that undercuts the minimum entitlements under the Fair Work Act for notice of termination. The Fair Work Act requirements are stricter than common law requirements, i.e. the rules and principles that are recognised by courts. You need to comply with both.

When Can’t You Dismiss 9

WHEN CAN’T YOU DISMISS

Despite probation, you cannot dismiss an employee when that dismissal breaches:

• The Fair Work Act general protections provision• Discrimination laws• A contract• Workers’ compensation legislation

Fair Work Act General Protections ProvisionsYou cannot dismiss an employee for a protected activity or attribute under the general protections provision of the Fair Work Act, for example, for exercising a workplace right or making a complaint about their employment.

Discrimination LawYou cannot dismiss an employee on the grounds of an employee’s protected attribute, or because they are unable to comply with a policy or practice because of their protected attribute, for example, pregnancy, sexual orientation or carer’s responsibility.

Breach of ContractAn employee can challenge their dismissal if you fail to follow the terms of their contract before you dismiss them. For example, if a probationary employee’s contract states that appropriate training and support will be provided, you cannot dismiss the employee for poor performance without first providing that training and support.

Workers’ CompensationIn some states, it is an offence under workers’ compensation legislation to dismiss an employee because they are pursuing a workers’ compensation claim.

CAUTION: Just because an employee is serving a probationary period, it does not mean you can dismiss them for any reason at any time.

IMPORTANT: This applies even if the employee is still serving a probationary period.

QLD: An employer must take all reasonable steps to assist or provide rehabilitation and suitable duties to injured workers. The prescribed minimum period and employer is allowed before dismissing an employee is 3 months.

NSW: An employer cannot terminate and employee within 6 months of the employee being injured, if the reason for the termination is due to the employee’s absence on workers’ compensation.

Our Contact Details 10

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Keep in touchFresh HR Insights Pty Ltd

PO Box 3172 Helensvale Town CentreQueensland 4212

Phone 0452 471 960

About Fresh HR Insights Pty Ltd 11

ABOUT FRESH HR INSIGHTSPTY LTD

Expert Human Resource Support when you need itWe work with you as your Human Resource expert. We not only support you to

eliminate workplace concerns with Fair Work and Employment Legislation compliance but help you build committed workplaces with engaged teams.

At Our Core What We DoAs a business, Fresh HR Insights Pty Ltd have made it our mission to protect business owners from Non-Compliance to legislation, Unfair dismissal claims, Workplace Complaints, Employee Conflict and get them compliant and their teams productive. We are working to empower every business by setting solid foundations and ensuring that when a business is faced with difficult employees, or facing a claim, or working to build workplace culture, we have you covered.

How do we do this?• Contracts of employment – we work with you on why employment contracts are

important, what they should and should not contain for your business and set about to make sure you have the correct ones in place

• National Employment Standards – we help you understand the minimum standards underpinning the employment of your employees

• Awards – These can be a minefield and knowing which one your team fall under can be hard. We clear up this confusion and make sure you are under the right one and paying all the right rates and allowances.

• Policies and Procedures – We work with you to not only have the core policies for your workplace but also the one’s that reflect your culture and how you work. Our handbooks are customised to your workplace and not the ‘off the shelf option’ sold by so many.

TAKE CONTROL OF YOUR HUMAN RESOURCES

About Paulette 12

ABOUT PAULETTE

Paulette McCormackCAHRI, MHRM, MER

Director and Founder of Fresh HR Insights

Qualifications:• Master of Human Resource Management• Master of Employee Relations• Certificate in Personnel Practice (Merit)• Certificate IV in Training and Assessment• Address Adult Language, Literacy and

Numeracy Skills Competency• Diploma in Business and a Diploma in

Management• Certified User of Thomas International

Personal Profile Analysis

Certified Professional Member of Australian Human Resources Institute, Member of theIndustrial Relations Society of Queensland, University Lecturer and Tutor at Griffith University. Current PhD Candidate

Highly driven, positive and professional Employment Relations expert. Specialist in people management, knowledge management, conflict resolution and the policies and procedures underpinning the employee relationships.

Here’s what one of our clients said.

“As a start up business Paulette was FANTASTIC in assisting us with everything we need! She made me feel confident when on-boarding new staff members, was available to chat and answer any questions at anytime, even after hours! Paulette created our full manual, personally delivered to our office and a wonderful hamper of fruit! Paulette was sensational and we cannot wait to continue doing business with Fresh HR Insights.”