Q. Our company has a recruitment policy for a three-month probation period during which the employee’s performance is monitored. After three months, the employee was given a letter confirming their successful completion of the probation period. Since then, the employee’s performance has markedly deteriorated to the point where the company is seriously considering terminating the employee’s employment. At this stage, the employee has completed five months of service with the company.

If the employee is dismissed is the employee eligible to claim unfair dismissal as he has completed the probation period provided in the company’s recruitment policy?

 
A. The Fair Work Act does not refer to a ‘period of probation’ with respect to unfair dismissal laws. Still, it refers to the minimum period of employment after which an employee may claim unfair dismissal (section 383). In the case of an employee whose employer employs 15 employees or more, the minimum employment period is 6 months continuous service, whereas, an employee whose employer employs fewer than 15 employees, the minimum employment period is 12 months continuous service. To calculate the number of employees employed by the employer at a particular time, all employees (including casual employees) at that time are to be counted as well as the employee(s) being dismissed, but excluding a casual employee who has not been employed on a regular and systematic basis. 

In this case, the employee would not be eligible to claim unfair dismissal if the employee is dismissed before completing the relevant minimum period of employment (six months or 12 months continuous service with the employer as the case may be). The terms of the Fair Work Act would override the terms of the probation period provided in the company’s recruitment policy.

 
General protections claim

 It should be noted there is no minimum period of employment with respect to a claim of adverse action by the employer (which includes termination of employment) under the general protections provisions of the Fair Work Act. These provisions provide protection from, for example, discrimination or the exercising of workplace rights. Also, the adverse action provisions carry a reverse onus of proof. This means that where an employee alleges that adverse action has been taken for a prohibited reason or with a particular intent, the court will presume that this is the case unless the employer can prove otherwise.  


Recruitment policy 

As a probation period is generally to enable the employer and the employee to determine the suitability of a new employee to the position, an employer may wish to continue to apply a probation period under this circumstance under their recruitment policy.

 
Bottom line 

A company’s probation period is not relevant with respect to the eligibility requirements relating to the unfair dismissal provisions of the Fair Work Act. The relevant minimum period of employment would apply in all instances.