Probation periods at work – understanding your rights
It is common practice in Australia for a clause related to a probationary period to be included in your employment contract. In this blog, we explore entitlements and protections related to probation periods under the Fair Work Act, and other general rights and entitlements while on probation, including:
- what a probation period is;
- termination of employment while on probation;
- resigning during a probation period;
- general protections claims while on probation; and
- unfair dismissal claims while on probation.
Which employees are covered by the Fair Work Act?
National system employees are covered by the Fair Work Act.
National system employees are:
- all employees in Victoria (with limited exceptions in relation to State public sector employees), the Northern Territory and the Australian Capital Territory;
- all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands;
- those employed by private enterprise in New South Wales, Queensland, South Australia and Tasmania;
- those employed by local government in Tasmania;
- those employed by a constitutional corporation in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities;
- those employed by the Commonwealth or a Commonwealth authority; and
- waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce.
If your employment is not covered by the Fair Work Act, your employment rights, entitlements and protections will be different to those discussed in this blog.
What is a probation period in an employment contract?
A probation period is a period of employment which allows your employer to check and assess your suitability for the position you are hired for. The probationary period normally starts at the commencement of your employment and normally runs for between 3 and 6 months.
Although it is your employer’s discretion to decide how long the probationary period will be, you can negotiate with your employer before signing the employment contract.
Additionally, a probationary period can be extended if the relevant clause in the employment contract gives your employer the power to do so. However, your employer can only extend the probationary period by the specific amount of time stated in the clause. If there is no reference to extending a probationary period in your employment contract and you did not agree to an extension imposed by your employer, you may have grounds to consider the extension as a breach of contract.
Can I be terminated while on probation?
Unfortunately, your employment can be terminated while on probation. This is because the purpose of the probationary period is for checking and evaluating your suitability for the specific role. If you do not meet your employer’s expectations for the position, your employer may terminate your employment while on probation.
If your employment is terminated, your employer must give you written notice of the termination. You may be required to work the notice period, or if terminated immediately, the employer must give you payment in lieu of the notice period.
The period of notice is determined by how long you have worked for your employer. For most employees on probation, the length of employment is most likely less than a year. If so, the period of notice of termination is one week.
Can I resign during a probation period?
Yes, you can resign during a probation period. However, your employment contract may have a clause requesting you to give your employer written notice. If there is a term in your employment contract addressing this, the length of notice period is also in the contract.
If you fail to give your employer the required notice period when resigning, your employer may try to deduct any notice period amount from your final wages calculation.
What if a termination while on probation is unfair or unreasonable?
There are two options available to you if you feel termination of your employment while on probation was unreasonable, unfair and/or unlawful:
- General protections claim;
- Unfair dismissal claim.
General protections claim after termination while on probation
If your employment is terminated while you are on probation and you think it is unfair, you may be able to apply for a general protections claim involving dismissal to the Fair Work Commission.
The Fair Work Commission (‘FWC’) will determine if your employment was terminated due to a prohibited reason. Prohibited reasons can include:
- exercising your workplace rights (e.g., querying your pay, complaining about workplace bullying or harassment or workplace safety issues);
- discrimination;
- taking protected industrial action.
If the FWC finds you were terminated for a prohibited reason, it will decide that the termination of your employment during probation was contravening relevant legislation and was unlawful.
Termination of your employment while on probation because you were not suitable for the role is not a prohibited reason, and you will not be eligible for a general protections claim under those circumstances.
Unfair dismissal claim after termination while on probation
Another option available to you if terminated unfairly while on probation is an unfair dismissal claim.
Generally, to be eligible for an unfair dismissal claim, you need to have completed a minimum six months of employment. Further, if your employer has less than 15 employees, you have to complete a minimum 12 months of employment before you can apply for unfair dismissal.
When you consider applying for either a general protections claim due to dismissal or, if eligible, an unfair dismissal claim, the most important thing is that you have to lodge your application within 21 days of termination of your employment. The 21-day period starts the day after the dismissal. Additionally, you cannot lodge applications for both claims. If you are unsure of which type of claim is suitable for your specific circumstances, you should speak with an employment lawyer or your union.
Other rights and entitlements while on probation
Basically, your rights and entitlements while on probation are the same as the rights and entitlements for any other employees who are not on probation.
These include rights and entitlements related to:
- your pay;
- workplace health and safety;
- worker’s compensation; and,
- entitlements under the National Employment Standards (NES), such as annual leave.
If you are employed as a full-time or part-time employee, you are entitled to accrue and access your leave entitlements, such as annual leave and personal leave, while you are on probation. Even if your employer tells you that you were unsuccessful before your probation ends, you are entitled to receive payment for accrued but unused annual leave.
If your employer decides to make your role redundant during your probation period and your employment period is less than 12 months, you are not entitled to receive redundancy payments unless other industrial instruments, such as an award or enterprise agreement, state differently.
Get help from an employment lawyer
It is not easy to figure out your rights and entitlements under Australian employment law. It can be especially difficult when you are in a vulnerable situation, such as a probationary period.
If your employer tells you that you failed to pass the probationary period and you need more information about your rights and entitlements and what legal options you have, our employment law teams across Australia are here to assist you.
Contacting Hall Payne Lawyers
You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.
Phone: 1800 659 114
Email: general@hallpayne.com.au
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.
Get in touch with today's blog writer:
Jessie Browne