Probationary Employment Policy

'Probation' is a contractual assessment period at the commencement of employment. It gives the employer an opportunity to assess whether the employee has the necessary skills, performance, conduct and suitability required for the role, and gives the employee an opportunity to assess whether the role and workplace meet their expectations.

It is important that the probationary period is specified in a written contract of employment prior to the employee commencing work. The contract should state the length of probation, any review process, whether probation may be extended, and the notice arrangements that apply during probation, subject to the National Employment Standards, any applicable modern award or enterprise agreement, and any more beneficial contractual term.

A probationary period commonly lasts three to six months, depending on the nature and seniority of the role. A contractual probationary period is not the same as the statutory minimum employment period for access to the federal unfair dismissal jurisdiction. Under the Fair Work Act 2009 (Cth), the minimum employment period is generally six months, or 12 months where the employer is a small business employer.  As a general rule, it is often sensible to align any contractual probationary period to the ‘minimum employment period’ under the FW Act.

The contractual probationary period does not determine an employee’s eligibility to make an unfair dismissal application. If the employee has completed the applicable minimum employment period, a dismissal (including during the contractual probation period) may still be challenged as unfair. Conversely, an employee who has not completed that contractual probationary period may still have other claims or remedies, including under the general protections, discrimination, workers compensation, work health and safety, whistleblower, contract or other applicable laws.
 

Employees on probation have the same minimum workplace entitlements as other employees. This includes applicable pay and conditions, leave accrual and access, notice of termination, payment of accrued but untaken annual leave, and other entitlements arising under the National Employment Standards, an applicable industrial instrument, legislation or contract. Probation should not be treated as permitting termination without notice or without considering the reason for, and process leading to, dismissal.

Employers should set clear expectations, provide appropriate induction, supervision and feedback, keep records of reviews and concerns, and give the employee a reasonable opportunity to respond to identified performance or conduct issues. Before ending employment, the employer should confirm the contractual and statutory position, identify any protected attribute, workplace right, illness or injury, complaint or leave issue that may create legal risk, and ensure that the reason for dismissal is lawful and supported by evidence.
 

If the contract permits extension of probation, any extension should be decided and communicated in writing before the original period expires, be for a reasonable and clearly defined period, and identify the matters requiring further assessment. An extension does not extend the statutory minimum employment period or remove an employee’s legal rights. If the contract does not permit extension, written agreement may be required, and legal advice should be obtained before proceeding.

Special care is required for transferring employees. Prior service may need to be recognised for some entitlements and, depending on the circumstances and statutory rules, may affect the employee’s service for unfair dismissal eligibility. A transferring instrument may also continue to apply. Legal advice should be obtained before offering employment, imposing probation or making decisions about continuity of service in a transfer-of-business context.

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