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Probationary Employment Policy

Version 1.0 Updated 3 Jun 2022
Policy Manage

Who can use this policy

This policy can be used by all employers throughout Australia, except the following excluded employers:

  • Non-constitutional corporation employers in Western Australia;
  • State public sector employees (i.e. employees of a Minister, the Governor or the Crown); and
  • Local Government employers — except in Tasmania and Victoria.

 

 If an excluded employer wishes to use this document, they should first obtain legal advice to ensure compliance with any relevant State or Territory legislation.
 
Commentary

'Probation' is a period of time at the commencement of employment during which the employee is assessed as to whether they have the necessary skills, ability, and aptitude required to perform their job.

The probationary period also allows the employee sufficient time to get to learn the job and find out if the job meets their expectations.

It is important that the probationary period be specified in writing before an employee commences work. One appropriate way to manage this is to provide the employee with a written contract of employment prior to them commencing which specifies the probationary period.

The usual period for probation is three to six months, depending on the nature of the position. However, employees of national system employers (i.e. employers who can use this policy) must serve a minimum employment period of either 6 or 12 months depending on the size of the employer before they can make an unfair dismissal claim. As such, some national system employers may elect to have a longer probationary period of up to 12 months so that the probationary period lines up with the minimum employment period.

It is possible to have a longer probationary period by written agreement between the employer and the employee before the employment commences if the period is reasonable having regard to the nature and circumstances of the employment. However, this is generally not viewed favourably by courts and tribunals unless the work is complex and assessment of the employee is difficult to carry out, in order to justify a longer period. Employers should also be conscious that if an employee’s probation extends beyond the minimum employment period required to commence an unfair dismissal claim, there is no protection from unfair dismissal if the employee is terminated within their probationary period.

If this policy is to be applied to transferring employees (i.e. new employees starting because of a transfer of business of their old employer), there are certain requirements in relation to their offer of employment. Legal advice should be sought in relation to these matters when considering a transfer of business.


Important note to subscribers

The commentaries and the documents in Workplace are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
 
This document has been drafted to suit a wide variety of businesses, with options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
 
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
 
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in the issues. You may also wish to consider contacting Australian Business Lawyers & Advisors for targeting advice on your business’s specific needs.
 
After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants. 

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