PROBATION PERIODS
HOW TO USE THEM EFFECTIVELY IN YOUR BUSINESS HAVE YOU EVER HAD A NEW EMPLOYEE WHO JUST DOESN’T SEEM TO FIT IN? IN THE RECRUITMENT PROCESS, THE POTENTIAL EMPLOYEE MAY HAVE TOLD YOU ALL THE THINGS YOU WANT TO HEAR; THEY ARE ALWAYS PUNCTUAL, RELIABLE, HARDWORKING AND THEY GET ALONG EASILY WITH MOST PEOPLE. Within a couple of weeks of that employee starting you see a different person. On a number of occasions your new employee has been showing up to work late without any good reason, and they have had heated arguments with their supervisor or team members about the best way to do things. Whilst they are a hard worker, you are concerned that this person is going to be ‘difficult’ to manage, and there is a good chance that they probably will not fit in with what the business wants to achieve in the long term.
What should you do now? Firstly, here are some of the legal requirements you need to consider before taking action.
What is a probation period? It is considered a trial period where the employer and employee assess whether the employment arrangement is going to work in the long term. The length of time required for a probation period will be specified in the Contract of Employment or Industrial Instrument, such as an Award or Enterprise Agreement; however, this is usually between three to six months. In general, employers use this period to assess an employee’s ability to do the job, his or her skills, standards, behaviours and cultural fit. On the flip side, an employee will be assessing you as an employer, what the work environment is like, whether they get along with their new team members, the support they receive from their manager, how the company treats its customers etc.
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The employer or employee will generally be able to end the employment relationship, by providing a period of notice that is less than what is required following the completion of the probation period.
Legally how does this work? Employers are protected under the Fair Work Act 2009 from employees claiming unfair dismissal, when the employee has worked for his or her employer for less than the minimum employment period. The minimum employment period is defined in the Fair Work Act as: six months for employers who are not considered to be a small business employer; or twelve months for employers who have less than fifteen employees and are considered a small business employer. (Note that this protection does not apply to sole traders and partnerships in WA who fall under the WA State system). It is important to note that if you are intending to terminate an employee’s employment during his or her
probation period, you must provide them with the appropriate period of notice before the six or twelve month minimum employment period expires. The Fair Work Act requires that the employer or employee is required to give the other party one weeks’ notice prior to terminating the employment arrangement.
Does this mean that an employer can terminate an employee for any reason during the Minimum Employment Period? In short, the answer is no. All relevant employment legislation such as Equal Employment Opportunity, AntiDiscrimination and general protection laws under the Fair Work Act during this period apply. For example, you cannot make a decision to dismiss an employee based on his or her gender, race or disability, or because they have exercised a workplace right such as raising a complaint relating to their employment or having to take sick leave.
June 2021
