Who can use this correspondence?
This correspondence can be used by all employers.
Commentary
Probationary employment refers to the initial period of an employee’s employment during which his or hertheir performance and suitability for the position are assessed. Employees must be informed prior to employment of this condition of probationary employment.
An employee’s probationary period should be in their contract of employment or an applicable industrial instrument (eg awards, certified agreements, etc).
Where the employer determines that the employee’s performance in the role is unacceptable, the employee’s employment can, in most cases (providing the probation period does not exceed any limitations on the period under the relevant legislation), be terminated without the employee having any right to proceed with an action for unfair dismissal.
Under the Fair Work Act 2009 (Cth), regardless of a contractual probationary period, a minimum employment period applies before an employee can bring a valid unfair dismissal claim. automatically without the need for bringing it to the employee’s attention before the commencement of employment. However, the probationary period and minimum employment periods do not prevent other claims for wrongful treatment under the general protections provision of the Fair Work Act 2009 (Cth) (such as discrimination or another, unlawful reason for termination of employment), breach of contract, or breach of competition and consumer legislation.
Accordingly, despite the fact an employee is subject to a probationary period, it is prudent to have a valid reason for termination of employment and follow a fair process in carrying out the termination to minimise these risks.
Once the probationary period lapses, the obligations on the employer when terminating the employee are much more onerous. Therefore, if you are not satisfied with a probationary employee, you should take action before the probationary period expires.
The Probation Terminated Letter assumes the most straight-forward situation, i.e. the employee being obviously unsuitable. It also assumes that the performance or conduct issues are clearly identified and explained to the employee at a meeting. Where warnings have been given, these should be referred to in the letter of termination.
Already a Workplace subscriber?
Log into Workplace to create this document and manage your team.