When starting a new job, employees will generally be advised that their employment is subject to an initial probation period. The exact length of probation may vary at an employer’s discretion, however, should not usually exceed six months. It is commonly understood that a probation period is designed to allow an employer to assess an employee’s suitability for the role for which they’ve been hired. What is equally important to acknowledge is that probation is also an opportunity for the employee to assess whether the workplace and position is right for them.
A common quandary – which we will address in this article – is the idea that an employee can be dismissed during their probation period without the need for the employer to give a substantive reason and follow a procedurally fair process. Is this fact? Or fiction?
What is a probation period?
A probation period refers to the initial months after a new employee has been hired during which both employer and employee are given the chance to evaluate whether the working relationship is to their satisfaction. From an employee’s perspective, a probation period allows them to see whether the role fulfils their expectations as well as whether the workplace is the right fit. From an employer’s perspective, a probation period allows them to assess an employee’s true skills compared to those they represented in their CV and throughout the recruitment process.
Throughout and/or at the conclusion of the agreed upon period – usually between three to six months – either the employer or the employee may choose to terminate the employment should things not progress as expected.
A common misconception around termination during probation periods is that there is no obligation to give a minimum amount of notice as per relevant industrial instruments. For example, the Fair Work Act and the Health Professionals and Support Services Award 2020.
While an employer may choose to include a provision in an employment contract that says a greater amount of notice is required following probation, they must ensure that the employee will receive no less than the minimum amount of notice included in the National Employment Standards (NES) and/or the relevant award/agreement (as appropriate) regardless of whether the employee is on probation or not.