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Completion of Probation Letter

Version 1.1 Updated 9 Mar 2020
Correspondence Manage

Who can use this correspondence?

This correspondence can be used by all employers in respect of employees (excluding casual employees) engaged for an indefinite period.

Commentary

A ‘probationary period’ is the term used to refer to an initial trial period when an employee is first employed by an organisation.  The probationary period is an opportunity for the employer to ascertain whether the employee is suitable for the role.

Employers may wish to confirm in writing that an employee has successfully completed their probationary period. This may also be a requirement of a particular employee’s contract of employment. It is important to ensure the length of the probationary period is consistent with the probationary period in the employee’s contract of employment or other industrial instrument (e.g. enterprise agreement or award) which governs the employee’s employment. 

You should also follow any workplace policies which deal with probation and which apply to the relevant employee.

Under the Fair Work Act 2009 (Cth) there is a ‘minimum employment period’ (12 months for small business national system employers and 6 months for all other national system employers) that operates for the purpose of determining whether an employee has access to the unfair dismissal regime. Generally, an employee who is dismissed within the minimum employment period will be prevented from obtaining relief under the unfair dismissal regime.

It is important that a probationary period is not understood by an employee to interfere with, or override the operation of the ‘minimum employment period’ under the Fair Work Act 2009 (Cth). This is as much a legal issue as a practical one, which can avoid unnecessary litigation when dismissing during probation or the minimum employment period. For example, an employee could be subject to a 3 month probationary period, however this would not mean that they are entitled to bring an unfair dismissal claim after this point – to be entitled to this protection, they would still be required to serve out the 6 or 12 month minimum employment period, as the case may be.

 

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