Dismissal during probation

Recently I’ve fielded a number of calls from employers seeking assistance around dismissal during probation: terminating the employment of a new employee who is simply “not working out”.

Someone on probation can just be dismissed, right? Or maybe not…

Let’s check the facts then offer you a simple alternative to dealing with the matter yourself.

Probationary periods are generally included in contracts of employment because people are familiar with the concept of a trial period: a defined period of time for both the employer and the employee to assess the suitability of the employment relationship.

Some employers are surprised to learn there is actually no legal requirement to have a probation period. In fact, there is no mention of the word “probation” in the Fair Work Act. What the Fair Work Act does make reference to is a “minimum employment period”: the period of employment after which an employee may claim unfair dismissal.

For employees with fewer than 15 employees, the minimum employment period is 12 months continuous service. For employers with 15 or more employees, the minimum employment period is 6 months’ continuous service.

While an employer can dismiss an employee within the minimum employment period without concern for liability from an unfair dismissal claim, terminating employment before the minimum employment period is served does not provide freedom to dismiss employees for any reason. Employers must not terminate employment during any period for an unlawful reason such as:

• a discriminatory reason such as race, colour, sex, age, physical or mental disability, pregnancy, religion, political opinion or nationality;
• because the employee has lodged a workplace complaint; or
• because the employee has made an enquiry.

Termination on this basis would breach the Fair Work Act general protections regime, which prohibits dismissal for certain reasons.

Taking the decision to dismiss an employee can be tough for many employers. There’s the general unpleasantness of dealing with emotions (from all sides), the potential minefield of legal hazards and the time investment in getting it right. But managing your risks around termination of employment can be a simple process…if you know how to do it.

That’s where Bare Bones Consulting works for you. We provide a process tailored to your business: a value for money solution to make things as simple as possible so you can deal with the issue and move on. Sound good?

Give us a call or shoot us an email here.