People Matters - with HR Central

 

An HR Myth: Probation Means Total Freedom to Terminate

 

Many employers assume that probation gives them complete protection. The thinking goes: “They’re still in probation, so we can let them go without any issues.” But probation isn’t a legal shield. It’s simply a contractual period used to assess whether someone is suitable for the role, and it coexists with some time period termination protections for businesses. 

While most probation periods fall within the minimum employment period required for unfair dismissal claims, probation does not eliminate all legal risks. Even during probation, employees may still have protections under the Fair Work Act:

• Unfair Dismissal Claims – Only available once the employee has completed the minimum employment period. If you employ 15 or more staff, employees gain access to unfair dismissal after 6 months. If you employ fewer than 15, they gain access after 12 months.

• General Protections / Adverse Action Claims – Employees can take action if they are dismissed for prohibited reasons, such as discrimination, exercising workplace rights (e.g., making a complaint or taking leave), or asserting entitlements. These protections apply even during probation.

 

For example, in a real case, an employee was dismissed during their probation period shortly after raising concerns about their workplace. The employer was unable to demonstrate that the dismissal was for a reason unrelated to the employee’s complaints. As a result, the dismissal was found to be unlawful because it amounted to adverse action under the Fair Work Act’s general protections provisions. Being on probation did not shield the employer - they were still held legally accountable.

During probation, you should:

• communicate concerns clearly
• give the employee an opportunity to respond
• document performance or behavioural issues
• ensure the employee has been given the training they need, and if they have not, provide this training
• make decisions based on genuine, lawful reasons.

 

A simple, fair process is often enough - but skipping it entirely can become a problem.

Another common misconception is that a longer probation period equals longer employer protection. In reality, it’s not the probation clause that determines what protections apply - it’s how long the person has been employed. 

Setting probation at 9 or 12 months doesn’t override these rules. Once an employee reaches the minimum employment period, they can lodge an unfair dismissal claim - regardless of what the contract says about probation.

Probation is a valuable tool for assessing fit, but it isn’t a legal loophole. Even during probation, you must act fairly, follow a reasonable process, and ensure any termination is based on lawful grounds. 

For further information, please reach out to an HR Specialist at HR Central on 1300 717 721 or hr@hrcentral.support.