Five Things You Must Know About Probationary Periods

Image of Fair Work Documents

Image Mahua DasYou invest a massive amount of time, energy and money to recruit a new employee into a vacancy.   Naturally, you would want a successful outcome of this investment.
(see also Probation vs Minimum Employment Periods)

On some unfortunate occasions, the match between the person and the job doesn’t work out.   That is the time to be honest and make a hard decision to implement a clean cut.   The probationary period gives you this opportunity to objectively assess the performance of the new employee and make this vital decision.   Moreover, the decision to terminate doesn’t come with the risk of unfair dismissal.   You can also avoid unlawful dismissal if you follow the right process.   However, many managers let this time slip by and start worrying about non-performance long after this period is over.

Here are five things you must know about probation to take advantage of this period of opportunity.

#1: Understanding the difference between ‘Probationary Period’ and ‘Minimum Employment Period’
By definition, probationary period is a time for assessment whether there is the right ‘fit’ between a new employees and their job. During this period an employer can make a decision whether to continue with the relationship or bring it to an end.

The Fair Work Act doesn’t recognise probationary period as a period of assessment. Instead, it mentions a minimum employment period (MEP), during which an employee is excluded from bringing in an unfair dismissal claim whether or not they have undergone a formal probation. The MEP is 12 months for employers with less than 15 employees and six months for employers with more than 15 employees.
You can still include a three month formal probationary period in the employment contract, but can informally extend your time of assessment up to six months (or 12 for small employers) and make the termination decision within this period. You will be exempt from an unfair dismissal claim.

#2: Extending the Probationary Period
Sometimes the three months is not sufficient to make an objective decision. You may wish to give more time to an employee to demonstrate their ability to do the job at an acceptable standard. You can extend the probationary period only if the employment contract makes the provision and you have the agreement of the employee.

This means, the employment contract should clearly mention that if necessary, the probationary period will be extended in consultation and agreement with the employee.

The important point to note here is that if the probation goes beyond the minimum employment period, the employer is no longer exempt from an unfair dismissal claim. For example, you have an agreement with your employee to extend the probation beyond six months and you decide to dismiss the employee at the end of that period. The employee considers the termination as unfair. They can bring in an unfair dismissal claim, even though the termination was at the end of a probationary period.

#3: Dismissing the employee during the Minimum Employment Period
During the MEP an employer can make and implement a decision to terminate a new employee if they are certain that the relationship will not work out. However, they cannot make an ‘unlawful’ dismissal – one that is based on prohibitive grounds. Some examples of prohibitive grounds would be, temporary absence from work due to illness or injury, bringing in a complaint against the employer for violating laws or regulations, race, sex, colour, sexual preference, age, physical or mental disability, marital status, family responsibilities – among other factors. If an employee believed that they were dismissed on an ‘unlawful’ ground, they can take legal action against you.

#4: Justification of having a Probationary Period in the new regime
A formal probationary period gives you the discipline to properly utilise that crucial first three months in a structured step by step process. As you decide the goals for the employee to achieve during this period, you start to recognise their true strengths and weaknesses, their ability to adapt to the culture of the organisation and potentials to make future contributions in the business. The constructive feedback that you provide to the employee makes a significant difference

The advantage of going through this structured process is that you would always make an objective go/no go decision about the continuation of employment. Moreover, if your decision to terminate is challenged, you can always prove that the decision to terminate was taken purely on the grounds of performance following a clear and transparent process and not based on any ‘unlawful’ or ‘discriminatory’ reasons. You can also prove that the employee was given reasonable time and opportunities to improve their performance in the role.

#5: The process to follow to make use of the Probationary Period
The first step is to include the probation clause in the contract document. Then it should follow a sequence before the business makes a final decision whether or not to continue with the new employee. The new employee should go through a proper induction process. This includes setting up of learning and performance goals to achieve during the probation and a structured process of reviewing the progress every 4 – 6 weeks. The review meetings should be a platform for the manager to provide constructive feedback to the employee of how they are coping with the role and whether they are making the expected progress in their learning and contributions. The manager should keep records of such meetings and send a confirmation email to the employee. If it so happens that a termination looks inevitable, the manager should put that in writing in a final letter with clear reasons.

Next time you have a new employee, make sure that the Probationary Period is completely utilised for you to make a timely decision that is fair, objective and accurate for both parties.

Mahua is the founder and director of consultancy practice Next Gen Teams that provides customised performance improvement solutions to businesses. 

*Disclaimer: We are not lawyers. This blog post should not be construed as legal advice by any means. Consult with a legal professional rather than reading a blog post if you are looking for legal advice.

By Mahua Das

Mahua is the founder and director of a consultancy practice, Next Gen Teams that provides customised performance improvement solutions to businesses. Services include building people strategy, optimisation of organisational structure, talent management, and creating high performance cultures. Mahua works with Nuage Software providing consulting and course material for our eLearnPack learning management system.


  1. Hello David I am working in a company I started on 3rd July 2023 I am the manager I heard my store supervisor who works under me said to a team member that the area manager said that if they don’t like my work they can get rid of me. I was wondering how do I proceed with a case like this.

    1. Don’t worry aboout what was said. Generally speaking, any company can get rid of any employee at any time if the work output is not satisfactory. Conversely, a company would be stupid to get rid of an employee who’s doing a great job. So just do your job well.
      Do worry about who said it. That supervisor is undermining your position and you should have a chat with him/her/them/it (is that too woke?) and let them know you are evaluating them, not the other way around.
      Best wishes,

  2. I’m at month five of my probation period, and am employed under an Award, whose members received a pay increase on 30th June 2023. My CEO says I am not entitled to the increase because I am under probation but my co workers are. I have searched the Award conditions and the Fair Work Australia website but can’t find any reference to a pay increase under probation. Any hints, anyone?

    1. Hi Ellie,

      The Fair Work Commission states:
      “Awards are legal documents that contain minimum rates of pay and conditions of employment.” (note that it says “minimum”)

      Fair Work Ombudsman states:
      “While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.”

      “A contract can’t make employees worse off than their minimum legal entitlements. This means that the entitlements in the award that applies to them, and the entitlements in the NES, keep applying, even if they sign a contract that gives them less.”

      Hope that helps.

  3. Hi David,
    I have been employed with one of the small companies since May 2022. I was due to complete my 6 months on 12th November and out of the blue moon on 10th November i got a message from finance manager that he needs to speak to me around 7:30 pm. I called him and he said my manager and CEO have decided i dont need to come from tomorrow on grounds of unsatisfactory performance. I asked him about what was not okay with my performance and he had no answer. I have been appreciated many times for work by the manager and CEO and got recognition as well and suddenly they tell me unsatisfactory performance. I was not told anything when i was at work on 10th November the entire day. I have even emailed them asking examples of unsatisfactory performance but got no reply. Later the CEO called me and said its not performance but its due to cost. This company has this pattern of hiring people at low salary and promising to increase after probation. Then they fire right before probation. Can i write to fair works for an investigation on them?

    1. Hi Sashi,

      If you think the company has been systematically underpaying employees and/or not providing their full entitlements, then by all means report this to Fair Work. If you are just angry at your dismissal, move on and find a better company to work for.

      Best wishes,

  4. Hi

    I am a small business owner with two employees (excluding myself). After much thought, time and mental anguish over the decision I have come to the conclusion that my new employee is not suitable for the role and I don’t think the person will ever meet the expectations of the role (and will always be behind the “8 ball” the probation period is extended).

    The person commenced employment on 17th August 2022 and has a 3 month probation period in their contract. Based on the fair work commission timing of a probation period I therefore calculate their last day of employment has to be 16th November 2022. . From the contract I need to give the person 1 weeks notice period that their employment will be terminated due to not reaching the expectations of the role. I feel this end of employment / probation meeting MUST occur on or before Tuesday the 8th of November 2022. Is my interpretation correct?

    I strongly feel the person will never be suitable for this role and therefore extending a probation period for another 3 months will only worsen the pain for both myself and the employee. However I don’t want the person to be unemployed while they search for another job or hurt their prospects of finding the correct job for them by rushing an employment decision. They are also more useful to me than an agency or temp staff member.

    If I extend the probation period I am worried I may open the door for the person to use all their sick leave of worse still to go on “stress leave” and make a workers compensation claim from undue stress put on them by the employer since they are being formally performance managed. (e.g. the employee has been in tears over not being able to find their way around dropbox and put files into the correct location). Can I terminate the persons employment then immediately offer them a casual employment contract?

    Thanks for your help on this matter.

    Below is an extract from their employment contract (3 month probation period was given in the schedule).

    You will be subject to the period of probation set out in Schedule 1 Item 2 to assess your suitability for the position. If this applies, your employment may be terminated during the probation on one week’s notice, or, at the Employer’s election, by payment in lieu.
    On the successful completion of your probation, your Employment with the Employer will be confirmed. If the Employer decides not to continue your employment beyond the end of the probation, your employment will expire at that time.
    Your period of probation will not affect any minimum or qualifying period under the Fair Work Act 2009 as amended from time to time (Act).

    1. Hi Stephen,

      You are caught up in what could be called the “decency trap”. You’re trying to be too nice and it will bite you, sooner or later. You do not owe them a living, they have to earn it. You are running a business and if an employee isn’t going to cut it you owe it to the business, and your livelihood, to get rid of them as soon as possible. Of course you need to do that legally and as nicely as possible, but act now.

      In days of old, probation periods used to be a handy way to defend against an unfair dismissal claim but thet really doesn’t matter any more. As a small busines you are protected from unfair dismissal for twelve months so the probation period is contractul issue to do with demonstrating competency. You contract says “may be terminated during the probation on one week’s notice” not “the one week’s notice must be within the probation period”. In other words you could give one week’s notice on the last day of the probation period and still be abiding by the terms of the contract. Of course, any time after probation, within the first year you only need to give one week’s notice anyway so it doesn’t make a whole lot of difference.

      If you are concerned about the risks of sick leave or workers comp, you should terminate with pay in lieu of notice and definitely not re-engage them as a casual. In fact engaging them as a casual will see their performance fall even further and may even invite sabotage.

      BTW Don’t discount agency/temp staff too much. I ran a large labour hire company for twelve years and there were pleanty of diamonds among the rough. Pick a good agency and provide a detailed brief and you might be surprised.

      Best wishes,

  5. I’ve been working for a small employer for nearly 3 months and I think they are about to get rid of me. They only need to give one weeks notice. If I resign, I am required to give 4 weeks notice. If I resign and give my notice, can they then still terminate me on the basis it isn’t working out or does my resignation and notice period take precedence?

    1. Hi Amanda,

      I am not a lawyer and I couldn’t find any web resource to give a definitive and authoritive answer. One would think that if you gave four weeks’ notice, it would be quite nasty for your employer to then give you one week’s notice. However, that could happen and then you would have to engage a lawyer to determine if you had a case to pursue.

      If you are sure they are about to sack you, you might as well get in first and see how it plays out. If they only pay you for one week, you can then decide if it is worth engaging a lawyer.

      Good luck,

  6. Hi, I am moving interstate and my employer is transferring my employment to an associated entity. So I will be working for the same company but under a different entity for insurance purposes. I was advised I would be given a new contract and that I have to serve another probationary period. I have been at the company for almost 12 months and they are not a small business. Are they able to impose another probationary period on me if the requirements of my role will not be substantially different? There will be no salary or duty changes, simply some additional duties and reporting change?

    1. Hi Mel,

      If you are moving to accommodate the business I think it is a bit rich to put you on a probation period. However if you’re the one wanting to move and the company is accommodating you, then perhaps it is understandable. Either way, it doesn’t mean they can sack you without due cause as your combined service will exceed the Minimum Employment Period and you can access the Unfair Dismissal Provisions.

      The Fair Work Commission has page at What is a transfer of employment? which explains, among other things, that “Service with one employer (first or old employer) will count as service with another employer (second or new employer) if two conditions are met:

          the second employer is an associated entity of the first employer, and
          an employee becomes employed by the second employer within 3 months of their employment being terminated by the first employer.

      I recommend you visit that page for more information.

      Good luck with your new posting.


  7. Hi, I was in the operations manager role for clinical research. I was informed on my probation review that it is not working out. no other feedback than you were more reactive instead of proactive.
    I had no clue that this is coming and the conversations were different a week ago.
    Can you please guide me?

    1. Hi Andy,
      If you haven’t reached the 6 or 12 month minimum employment period, the only obligation your employer has is to provide a notice period or pay-in-lieu.

  8. Hi I signed a new employment contract on 12 Nov 2021 and started employment on 21 Nov 2022 which of the 2 is my start date of my probation and now I am only 2 days away from completing my probation at the end of the probation period do I get anything from the employer confirming my employment at this company or does the contract just continue on as is. The contract does not say anything about extending the probation period but only that after the probation period should I satisfactory complete it my employment continues on the terms of the contract agreement. So does this mean if they don’t say anything 2 me after the 6 months then I satisfactory completed the probation period of 6 months being a company employing more then 15 people and am a permanent employee and just continue on as normal without any worry. Also what if the employer doesn’t remember or know the date I commenced and forgets when my probation period finishes and then tries to say I didn’t pass my probation. And 6 months is that the 21st to 21st or 21st to 20th or 24 wks cos has many interpretations

    1. Probation Periods used to be a way to avoid Unfair Dismissal claims but that became irrelevant with the introduction of the Minimum Employment Period (MEP) back in 2009. During the MEP an employee does not have access to the Unfair Dismissal provisions. However, all other entitlements and protections do apply.

      If I was being really generous, the kindest interpretation I might give is that the Probation Period is a time where the employee is trained and demonstrates increasing competence sufficient to keep the job. More realistically though, the term “Probation Period” is used a psychological tool to put employees on notice to perform well or face the sack.

      The MEP now covers all that, making the “Probation Period” a relic of the past. The MEP is measured in calendar months, regardless of the number of days in each month. So if your period started on the 21st of November, it ends at midnight on the 20th May.

      Theoretically employers should perform an appraisal review and provide a letter confirming you have passed probation, but that seldom happens. Often, if you doing an okay job, nothing is said and you just continue on. If they want to extend the probation period you could argue that it is not allowed for in your contract. If they persist, make sure you get a full explanation, in writing, on all areas where you need to improve and what metrics you need to meet.

      So, it’s the MEP that counts and the only effective change is that after the 20th May you can access the Unfair Dismissal provisions, even if your employer extends the probation period.

  9. If a contract says the probationary period is three months and may be extended to six months. However, at three months, the company did not confirm employment, terminated or extended the probationary period. Does this assume the probationary period is over? The contract stipulates that the notice period is one week during probation and four weeks afterward.

    1. Hi John,
      This will be one of those situations where an employer might well have a different interpretation to that of the employee and lawyers will need to be involved. It seems reasonable from an employee’s point of view to assume that as nothing was said about extending the probation it must be over. However the employer’s view might be that employment has not yet been confirmed or terminated and therefore the probation continues. Sorry I can’t be more definite.

    2. Hi David,
      I left my previous employment to accept this role probation for 3-6 months. Eventho I told them I had no intensive experience in the role, they offered me the job. They micro manage me, reviews that last for hours to point out errors I made.
      I feel suffocated but I feel like they’re going to get rid of me. The company is fairly small and I’ve worked in much larger companies so the responsibility is huge and so much to learn.
      If they don’t extend my 3 mos probation, I lost the job I shouldn’t have left and can they refuse to not allow me pursue the role and terminate me? Thank you.

      1. The company can terminate you if they feel it is not working out. And, you can quit if you are being suffocated. The options you have are to stay and give it your best shot, or start looking for another job.

  10. Hi David, if a part time permanent in probation period, has 2 preferably day in a week, let’ say Mon and Fri, can this staff working day(s) be moved around (as long as the hours stay the same) because in that week the workplace was closed due the public holiday? Thank you.


    1. Hi Chris,

      The Fair Work Ombudsman advises…

      “If an employee is absent from work on a day or part day that is a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay for the employee’s ordinary hours of work on that day or part-day.

      However, an employee is not entitled to payment if they do not have ordinary hours of work on the public holiday.

      For example, a part-time employee is not entitled to payment if their part-time hours do not include the day of the week on which the public holiday falls.”

      “Overtime is when an employee works extra time. It can include work done:

      • beyond their ordinary hours of work
      • outside the agreed number of hours
      • outside the spread of ordinary hours.”

      The critical words are “ordinary hours”. If your ordinary hours occur on Mondays, then you are entitled to be paid for public holidays that fall on Mondays. If you are then asked to work another day to make up for the holiday, you should be paid overtime.

  11. Hi David,
    I started working for Company A about 40 days ago, where I signed contract that did not mention of probation period, but with the clauses of “either party may termination this agreement by giving the other 2 month’s written notice”.
    Now I want to resign as I have another better offer from Company B.
    During the initial meeting with Company A, I was told to give the company 2 month notice as it’s what’s written and signed on the contract.
    I thought it’s not reasonable, as I only worked for the Company A for less than 2 months.

    Do I still have to give the company 2 month notice?
    Can I say, I am in probation (as been only with the company less than 2 months, assuming the probation period of 6 month is default minimum employment period, even if not mentioned in the contract)?

    I just want to give them 2 week notice as I think it’s reasonable.
    Is there any minimum notice period that is enforceable in this case?

    Company B asked me to join ASAP (max 4 weeks).
    It seems I might lose both jobs in the end.

    Look forward to hearing your advice.
    Thanks in advance

    1. Hi Jason,
      This is one of those questions where I must start by saying I am not a lawyer, and this is not legal advice only my personal thoughts. You should not rely on my thoughts and consult a lawyer before acting.

      So, my thoughts…
      Your contract overrides minimum notice periods, and the Minimum Employment Period only concerns your access to the Unfair Dismissal provisions.

      You must hold a sensitive position for the company to include the two-month notice period in your contract. You could try to negotiate a shorter period, or you could just break the contract by giving less than two months’ notice. However, if you break the contract, how much pain will it cause the company? Will it be enough pain for them to take legal action? If so, can you afford to defend the action and pay any penalty that might be awarded?

      Another thought, if you are going to a competitor, are there any clauses in the contract restricting who you can work for? That might be another cause for legal action.

      Good luck,

      1. Hi David, thanks for your reply. I thought my posting was not listed, so I uploaded another one (you can ignore).
        I was working as a member of senior management team (not executive though). Company B is not a competitor (different industry) so I would not worry.
        Can I assume the probation period (even though not included in the contract) is included implicitly so that I can terminate my employment with the minimum notice as I have only been with the company less than just 2 months?
        If they do the lagal action, do I have to pay back for two month’s salary in worst case scenario? Or would it be much more including their legal consultation fees as well?

        1. Hi Jason,

          Under the same proviso that I am not a lawyer, here are my thoughts…

          Your have contracted for a two-month notice period without probation so I think, on the face of it, you are stuck with that as your starting point. If you now say that you are within a probation period and give one or two weeks’ notice, you might get away with it, so it’s worth a try. A lot will depend on how agrieved or vindictive the company feels about your departure. Some managers will be philosophical about it and some can be very difficult.

          If they do take legal action, I imagine the court will assess the actual loss your departure has caused the company and limit any penalty to that amount. From the company point of view, they will have to assess whether it is worth the trouble. I imagine they would have far better things to spend their resources on.



          1. Hi David,
            In a similar situation, I started working for a company as a senior manager with 3 months’ notice of termination in my contract and 6 months’ probation. Still, one week before my probation ended, they asked me to leave verbally without any reason. I asked after my departure to confirm my dismissal and 3 months’ payout notice, but they returned to me after one week and said they would pay me only a week.
            Where do I stand here? 3 months because of my contract or one week because I was still on probation?

          2. Hi Matt,

            I think your situation will be defined by your contract. If the only mention of termination is the three-months clause, then that is what you should get. However if it specifies one-week’s notice while on probation then you are stuck with that.

            The Fair Work Ombudsman says this about Probation:
            “While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period. This includes the entitlements in the National Employment Standards.

            If hired on a full-time or part-time basis, an employee on probation is entitled to accrue and access their paid leave entitlements, such as annual leave and sick leave.

            If an employee doesn’t pass their probation, they are still entitled to:

            • receive notice when employment ends
            • have their unused accumulated annual leave hours paid out.”
  12. Hey David,
    So I’ve been in 3 months probation period, that ended on the 25/11/2021 (my contracts leaves room for extension) , I’ve only been informed verbally that it is being extended, without an additional information.
    It not being in writing, and not having me agree on it,
    Legally does that still mean I’m in probation period ?
    Thank You, In Advanced

    1. I can only speak from my experience in Australia and the laws are likely to be different in other countries. Depending on the wording in the contract they may not need your agreement to extend. e.g If it says “The company may extend the probation period at its sole discretion”, your agreement wouldn’t be required.

      In any case, what will it mean if you do not agree to the extension? Will they then be looking for a reason to get rid of you as soon as possible? In Australia we can’t claim unfair dismissal if we haven’t been with the company for at least six months, so a three month probation has little meaning.

      The first thing I would be doing in your situation is asking why they want to extend the probation period and specifically, in what areas do you have to improve to ensure you keep your job.

  13. Hi David,
    I signed a contract on 16/08/21 with a probation period of 3 months (ending on 16/11/2021) however, my employer wants to extend my probationary period by an extra 3 months. The clauses in my contract state,
    “3.3 The employer may, at its discretion, extend the probation period”
    I’m asking, due to clause 3.3, does the employer need an amended contract to update the probation period or can the employer do so verbally without re-signing a new contract?

    Thank you

  14. My understanding is if you give notice, the notice period starts the next day.

    I am currently on probation with a notice period of 1 week (afterwards 4 weeks).

    If I communicate my notice on the last day of probation will my notice period still be 1 week ?

    e.g. My probation period ends on the 10th Nov. I give notice on the 10th Nov. As my notice period wouldn’t start until the 11th Nov would my required notice period be 1 or 4 weeks ?

    1. Good question. I am not a lawyer but it seems reasonable to me that if you are still within the probation period when you give notice, it will only be one week. It doesn’t matter that the period starts the next day, as long as you have given notice while still on probation.

      1. What if you have an employment contract that stipulates 4 weeks notice even if you are on probation. Is that legal to enforce as being an employer we need our employees in certain roles to have a 4 week notice period.

  15. If we have an employee that is starting off casual and then becoming permanent, would the probation period restart?

    1. When converting a casual to permanent it is normal to issue an employment contract which typically contains a probation clause and that’s fine. Employees are often on their best behaviour whilst they are casual and performance may drop off to some extent when/if they become permanent. Therefore a probation clause might keep them on their toes for a longer period.

      It used to be that a probation period gave the employer a protection against unfair dismall claims. That is no longer the case and employees can access Unfair Dismissal provisions once they pass the Minimum Employment Period (MEP is 6 or 12 months depending on the size of the business).

      Please note, the Fair Work Ombudsman advises:
      “Periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:

      • the employee was a regular casual employee, and
      • the employee had a reasonable expectation of ongoing employment on a regular and systematic basis.”
  16. My employment was terminated during my 6 month probationary period at the instigation of my employer. My role was remotely based with head office located close to 2000kms away from my home. My employer sought my confirmation that I would work through the full 1 week notice period which I confirmed by email as I wanted to wrap up my unfinished projects. I continued to work through my projects and submitted a number through thr system for sign-off. However on day 2 of 7 I returned to my computer after my lunch break to find that I had been locked out. 15 mins later I received an email from the business services officer saying the she was informed that rather than my last day the final day of notice period (1 week) that my last day of employment was then and I needed to return their computer. I replied to the email advising them that this was not communicated to me, and advised I would return the computer promptly and also submit for time sheet for my final pay for the hours I had worked and the remaining hours as payment in lieu of notice. I did so, and when my final pay came through, I realised my payslip showed they only paid me for 5 of the 6 days I had worked during that pay period and my annual leave and loading. They also did not pay me for the remaining days of notice period as payment in lieu of notice. I responded via emailing outlying the shortfall using a template available from fair work ombudsman. They replied advising they would not be paying me because “they are not obligated to pay any employee who does not attend work and does not complete agreed work “. I know that I was working as per my contract hours (and have a diary to confirm my start and finish times and lunch breaks) and I also know I submitted all the agreed work. I am not sure whether or not this is relevant but want to know what my options are – can they withhold my payment in lieu of notice? I think they are claiming they are withholding it because they believe they paid me for hours I never worked prior to the days I was at work?

    1. The Fair Work Ombudsman says “If an employee’s employment is ended while they’re on probation, they still have to get or be paid out notice based on their length of service.” In your case this is one week. The only exception is termination on the grounds of serious misconduct.

      You may need a lawyer or you could first try sending a Letter of Demand, which puts them on notice that legal action will follow if they do not settle your claim. You could adapt the template at the Australian Government site “Business” or at the LawDepot site.

      1. Thanks for your speedy reply. No misconduct of any kind, I just wasn’t what they were looking for.

        I had sent them an email which was essentially a letter of demand except it did not specify that I would take further action (report to FWO/legal action to recover costs).

        I appreciate you sharing your knowledge. pointing me in the right direction and reassurance of my entitlements

  17. If I am employed by Company A through an employment agency for the first 3 months. Then after the 3 months I am now working and employed through Company A directly, should my probation period of 6 months with Company A start from when I was through the employment agency or directly through Company A. Keeping in mind for the first 3 months I was working for Company A and essentially only being paid via the employment agency. Or is this a loophole so that Company A now essentially is achieving a 9 month probation by using an agency for the first 3 months ?

    1. When you moved from the employment agency to Company A you effectively terminated your employment with the agency and started a new employment with Company A.

  18. Hey David,

    I’ve been working with a business for nearly 6 months now, I understand that a contract is legally binding whether written or orally. With my employer I have never received a written contract until last week; I was under the impression that since nothing had been discussed other than my general duties, pay rate and my hours that my probationary period would be a standard 3 month period for a retail award employee… I have now received this contract and a non compete clause has been added and my probationary period is now 12 months which neither of these things were discussed prior to my agreeing to employment. Obviously I still want to work there however do not wish to entertain these two things as I feel it is too late to tack on the probationary period and secondly, the non compete clause will limit my opportunities moving forward in any event. Do I need to sign this contract/what are my rights as an employee? Don’t want to get caught in any situation that limits my potential and growth in the future.

    – D

    1. Hi D,

      Well that is a crappy way to treat an empoyee!

      The Probationary Period doesn’t really mean a lot. As long as you pass the Minimum Employment Period (6 months for large employers, 12 months for small) you have access to Unfair Dismissal provisions if you need them. Apart from that you accrue all your entitlements the same as a permanent employee.

      The non-compete clause needs some consideration. This type of clause is usually reserved for employees who have exceptional abilities and are likely to be poached, or are privy to sensitive company information that could be damaging if passed onto a competitor. This has to be balanced against the employee’s right to work. Often these clauses are not enforceable because they are too vague or too restrictive. See this article by Foulsham & Geddes Lawyers for more information Non-compete and restraint of trade in employment contracts. You mention your are a Retail Award Employee which indicates that your skills and knowledge are readily transferrable and in demand therefore you might wish to contest that clause and have it struck out to avoid any future issues. On the other hand, if you do sign, the company may threaten legal action but it will have to weigh up the costs, the damage you are inflicting and the likelihood of success before proceeding.

      My suggestion (this is not legal advice, you should check with a laywer) – stick it in the bottom drawer and see if they remember to ask for it. If they do ask, challenge both clauses and eventually compromise by accepting the probation period as long as the non-compete clause is removed.

      Best wishes

  19. Hi There

    I have i job offer from current employer to a change of role, they have included a 6mth Probationary Period…after working for 4yrs with the same company, are they legally allowed to add 6mth Probation?
    Can I refuse to sign contract based on this?


    1. HiJesse,

      Companies often insert a probationary period when changing jobs within the firm. It could be a method to ensure training is effective, or they might have a more sinster reason. The legislation specifies that while on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period. You have four years service so a “probation period” won’t affect your accrued entitlements. I would carefully read the entire contract to make sure they haven’t inserted a shorter notice period or anything else that reduces your entitlements, both of which are illegal. I would question the idea of a probation period to see what their intent is. Make your decision on whether to sign or not based on how comfortable you are with their answer.

      Best wishes

  20. Hi David,
    I’m about to commence employment with a company that implements a 6 month probation period. They advised me that during the probation period, my hourly pay rate is less than what it would be post probation! Is this legal?

    1. Hi John,

      Legislation sets minimum pay and conditions for most occupations. As long as your employer is meeting or surpassing those obligations they can set your pay rates as they wish. Having a lower rate during probation may just be recognition that you will go through a learning curve before you return full value to the company.

      Best wishes for your new role.


      1. question if your on two weeks probation and that two weeks has pass into another month should you be paid for the first two weeks including your monthly salary or is it in the back as they say?

  21. Hi David,

    Hope you are doing well.
    I got a question regarding the probation period extension.

    I have been employed by listed company and on my contract mentioned the probation period is 6 months.

    During the probation period, I got two awards, one is from the good feedback from client and another one is from herself as I have dedicated my time to complete the work. And due to the works that was on my position was not too busy so I asked my manager if I can help another department and she agreed to that. I enjoyed working with another department and I still cover all my works with no issues.

    My probation period was ended 23.05.2021 and I have been postponed for probation review couple times and on 12.6.21, I have requested to transfer to another department as I enjoy that work more. Today, I have my probation review with her, it has been 3 weeks overdue.
    My manager wanted to extension my probation to 30/9/21 because she said I have lack of communication and she refer to only one client complaint, and I did not take ownership of some work that was out of my expertise.
    Could you please recommend what I should do with this situation? Does she have the right to extend my probation period?

    Kind Regards,

    1. Theoretically an employer cannot extend the probation period without the employee’s agreement. And, in your case, you have already completed the probation period so, by your contract terms, you are no longer on probation so how can it be extended? However you have to consider your particular circumstances and decide if you want to make an issue of it. There is a possibility that if you don’t agree to the extension your employer might terminate you now.

  22. Was employed 3 weeks ago on a three month probation period , was phoned tonight after hours and sacked , for no reason . Is this legal ? And should I be paid out for the rest of the period ?

    1. Hi Julie,

      Sorry to hear you have been treated so poorly. Every employee deserves to know why they are being dismissed, not to do so is evidence of poor management.

      Assuming you were a permanent employee you are entitled to one week’s notice. See Notice during probation periods.

      The probation period is just a trial and not a guarantee of employment for the full period so you have no claim for that.

      There are a couple of exceptions where you receive no notice period:
      1. if you were employed as a casual
      2. if you were dismissed for serious misconduct

      Another consideration could be if you feel you were discriminated against unlawfully. See unlawful workplace discrimination for more information and what action you could take.



  23. A friend of mine recently resigned from her job after working with the company for over 5 months ( with 3 month probation period) and has given 4 weeks’notice as per employment contract. Clause 13.3 (a) :
    13.3 Termination By You:
    a) If your period of continuous service is not more than 1 year – 4 week’s notice;
    b) If your period of continuous service is more than 1 year and less than 5 years – 5 week’s notice; and
    c) If your period of continuous service is 5 years or more – 6 week’s notice,
    or such shorter notice period as may be allowed by company at its sole discretion

    However her employer uses this same clause and reduce the notice period to 1 week. When she contested the reduced notice period, he then issued her a termination letter with 1 week’s notice , ”the grounds serve many concerns in addition to your remuneration package requisite to your experience, application/productivity for particular clients base”.

    Is the General Protections apply to protect her entitlement ?

    1. The catch is the clause “or such shorter notice period as may be allowed by company at its sole discretion”. The company is required to give one week’s notice in the first year and they have done this. I can’t see how the General Protections could be applied.

  24. Hi David,
    I started a new position about one month with a new employer.
    A contract was signed etc.
    They have hired 5 people at once, and now i think they are over resourced as most of the new guys are just watching training videos and not doing actual work.
    They already got rid of one new guy, I was called into a meeting a day after and they mentioned i was ‘under-performing’ however I have not had the chance to prove my skillset due do only getting work that is lower than the level of my job role and half of the time I have been there its just been watching training videos.. They want to drop my job to a lower level as well as reduce my pay by over 30K AUD.
    I have asked to provide VERY specific examples of my under-performance and they cannot do so, they said it was just a ‘overall general thing’. They cannot seem to provide examples.
    I don’t mind changing job position the issue is the salary, in the contract it says it is a fixed fee and that it cannot be changed.
    I think they are now over-resourced and trying to move me to a lower position with lower pay to cut costs , of no fault of my own.
    Do I have any legal pathway here?
    The probation period is 6 months.


    1. Hi Nathan,

      If we just look at the industrial relations laws, the company could give you one weeks notice and either let you go or offer you an alternative role at the lower rate. It would be your choice to accept the lower rate or not.

      However, the contract may have wording that gives you more leverage. For example I have seen poorly worded contracts that inadvertantly guarantee employment for the duration of the probation period. You will need a lawyer to review the contract to see what can be done.

      Good luck

  25. Hi David
    I have recently returned to work from maternity leave, reducing my hours from full time to part time. I did not return to my old role as it is too large to do in part time hours. Around 6 weeks into my return to work, the company asked if I could switch to a significantly different role which I obliged. I also informed them that I was pregnant again. I received minimal training and a very large workload in the new role, to which I will be the first to admit I have made some errors. All of my errors have been documented by management in writing but no official performance management plan has been discussed. I have been in this new role for around 6 weeks, and they have now put me on a probation despite the fact that I have not signed anything, when I moved to the new role I got a change of position letter but I did not sign anything. There was no probation period stated on the letter. I have worked for the company for 4 years. Do they actually have a leg to stand on here?

    1. Taking your comments at face value this could possibly be a plan to terminate you. Then again it may be that your employer is simply doing the best they can to accommodate you in a part time role, but I doubt it.

      If it comes to a termination you have grounds to take action either on your own or with a lawyer. See FWC website “Do I need to be represented?
      I am not a lawyer but here are a couple of thoughts that might help if it comes to that:
      Most importantly, create a timeline and document everything you can think of, e.g.
      > try to write down a “he said, she said” transcript of conversations as soon as possible with times and dates
      > when did you tell them you were pregnant again? Before or after they changed your role?
      > when did they impose a probation period?
      > what training was provided for the new role?
      > when did they start to document errors?
      > did they offer any corrective training after each error?
      > have they provided any performance reviews?
      > was anybody doing this role before you? How does their workload compare to yours?

      Regarding “probation”, this is not a term used by the Fair Work Act 2009 (the Act). Probation is a contractual matter and as such has to be defined and agreed between the parties. From your comments you haven’t agreed to a probation period, and it was imposed after you had already started in the role. Make sure you record these dates too. You have already passed the Minimum Employment Period so you have access to Unfair Dismissal provisions regardless of any probation period.

      If you are terminated, take all this information to the Fair Work Commission and/or a lawyer who can examine if you have a claim under Unfair Dismissal, Adverse Action and/or Discrimination.

      Unfair Dismissal is when your dismissal was harsh, unjust or unreasonable.

      The Act defines “Adverse Action” as:
      Adverse actions that can be taken against an employee or potential employee might include:
      > dismissing them
      > not giving them their legal entitlements
      > changing their job to their disadvantage
      > treating them differently than others
      > not hiring them
      > offering them different (and unfair) terms and conditions, compared to other employees.

      The Act defines “Protection from discrimination
      An employer must not take adverse action against an employee because of an attribute of that person.
      The list of attributes includes “pregnancy”.

      Hope that is helpful Best wishes for your career and family.

  26. Hi David,

    if an employee resigns and returns to the organisation after 7 months, does the original tenure (which was min 24 months count towards minimum employment period?

    1. Hi Jack,

      The Minimum Employment Period is defined as a period (6 or 12 months) of continuous service.

      The Fair Work Commission site What is continuous service? explains:
      “The following periods will break an employee’s continuous service with their employer and may result in a new period of employment for re-engaged employees:

      • resignation
      • dismissal, or
      • transfers of employment which do not meet the definition of a ‘transfer of employment’ in s.22(7) of the Fair Work Act.”

      On that same page they provide this example:
      “Tebble v Rizmas Pty Ltd [2011] FWA 6853 (Roe C, 5 October 2011).
      The employee was found to have resigned her employment and then returned to work. Her resignation broke continuous service and she subsequently commenced a new period of employment.”

      So in your scenario the original tenure does not count.



  27. Hi David,
    I have a contract that agrees to 6 months probation period. During this time either my employer or I can give 1 weeks notice. After the probation period it moves to 3 months notice.
    I am intending to resign on Monday from the position. My 6 months probation is due to end on 28th March – and I will be resigning on 15th March.
    Today, without warning or discussion, my employer gave me a letter congratulating me that my probation period has ended. I don’t know what to do as I want to resign and only provide a weeks notice – maybe 2 but I will be starting a new job after this. Can my employer end the probation period without me agreeing to it?

    1. I don’t think you need worry. Say “Thanks for the offer of permanancy but I can’t accept it. And, since probation period runs to 28/3, here is one week’s notice as per our current contract.” It could be that your employer has heard you are going to resign and is trying to hang on to you for longer.

      1. May I ask adding to this question, after the 6 months probation, if the employer does not offer anything in writing to continue to work with them, are we able to leave without any weeks notice on the end of the 6 month probation

        1. This is from the Fair Work Ombudsman

          “An employee’s award, enterprise agreement, other registered agreement or employment contract may set out how much notice (if any) they need to give when they resign. Employees should check the terms of those documents for information.

          Under the Fair Work Act an award and agreement free employee doesn’t need to give notice to their employer before resigning. However, they may need to give their employer notice under their employment contract.

          If an employee’s contract is silent about notice, or the employee doesn’t have a written contract, the employee might need to give their employer reasonable notice.”

  28. Hi David,

    I made a contract with my employer but haven’t started working with them. Now I would like to terminate the contract. The employer is asking me to pay for the migration agent fees as they have nominated me with a working visa for me to work with them, but the nomination hasn’t been approved yet. I haven’t made any agreement with the employer and her lawyer to pay for any migration agent fees prior.
    And also, I would like to know even I signed the employment contract but haven’t started working with them. When will this employment contract come into effect?

    1. Hi Max,

      You will need a lawyer to analyse your contract and give you a definitive answer, but here are my thoughts for what they’re worth.

      You signed a contract promising to work for this company and, on that basis, they have incurred costs in procuring a working visa for you. It doesn’t matter that the nomination hasn’t yet been approved, because there are costs involved just in preparing the application. From an ethical and moral standpoint I think you should pay those costs because you are breaking your promise. I also think you are probably legally liable as well, but ask your lawyer to be sure.

      When you sign a contract you are making a binding agreement and it comes into effect immediately. It may have a later start date, and work conditions won’t be applicable until you commence, but in signing the contract you are making the commitment to follow through and other parties to the agreement will expect you to honour that commitment.


  29. Hi David;

    I am currently 3months in of my 6month probation and have been promoted to a higher role however I was told a pay review only kicks in at my 6months probation interview. Am I right in thinking I should be paid higher duties?

    1. Hi Eddie,

      On the face of it I would say you should be paid the higher rate. However, there may be something in your contract covering pay reviews, or it may be considered a training period at reduced pay.
      This early in your employment you won’t want to be seen as a difficult employee, but you should ask about your pay as nicely as you can, if only to find out what increase you can expect at the pay review when it happens.

      Best wishes,


  30. Hi David,
    I was employed 5 weeks ago as a casual and promised weekly of a full time contract once another employee began her maternity leave period. I was told a week earlier that I wasn’t meeting the right conversion rate of sales (same as employees who have been there for way longer). This week I was pulled into the office for a meeting with the Assistant (manager went home before talking to me himself) and explained their sister company was struggling financially and that I would be changed from permanent shifts to on call (I was fine with this) a few comments were thrown in stating that they will keep my details on file, and that a more permanent employee from the sister company would take my place but they could not afford to have me on also, which I thought was understandable. I was told that I can finish my shift and then I will not be needed. Only to find out the next day they have posted an advertisement seeking someone for full time position online.
    Is this unfair dismissal? I know I can’t report due to the small amount of time I was employed but I’m just so angry, I have kids and have childcare fees I have to pay and other financials to deal with. I was very empathetic to the business not doing well so I think that’s also playing a part in my anger.

    1. Hi Emily,

      Not much you can do about this. Totally understand your anger because they didn’t have the balls or respect to tell you the truth. Had they simply said “this isn’t working for us and we are going to advertise the role” you would probably feel much better. This is an indictment on their management more so than on your performance. Best to put it behind you and look forward to better employers in the future.



  31. Hi David, I have been employed full time with my current employer for 7 years. I am returning to work in April on reduced hours (3 days) with the same job title, having been off on maternity leave for 14 months. Today my employer has issued me with a new contract to sign, it is a part time contract with a 6 month probationary period which I’m not really happy about given I’ve been employed there for 7 years. I’m struggling to find any information relevant to my situation and was wondering if you can offer any advice so I know where I stand, before I bring it up with my employer. Thank you!

    1. Hi Dee,

      The Fair Work Obdudsman website Returning to work from parental leave states “An employee who’s been on unpaid parental leave is entitled to come back to the job they had before going on leave.” So if you were coming back into the same job with the same hours it would be straightforward, no contract needed. However, because your hours have changed, I can understand the need for a new contract. The inclusion of a Probationary Period may just be a standard clause in the company’s contract, in which case they should have no problem crossing it out. If they insist on leaving it in, check other clauses to make sure one doesn’t say they can terminate you during probation for any reason. You are entitled to come back into your old job and shouldn’t be required to serve any probation period. I’m not a lawyer and this is not legal advice, but if it was me, I would challenge the contract and ask that the probation period be removed.

      Hope that helps,

  32. Hi David,

    I have a friend who signed for a contract with a bond and training agreement stating that he is required to repay $50,000 (on a reducing pro-rata basis, calculated monthly) if their employment ceases during the first two years. Does this mean that if he chooses to resign within the 2 years even if it is during the probationary period- he needs to pay the $50,000? Thank you.

    1. You need to speak to a lawyer and have the contract analysed to assess the ramifications. There may well be other qualifying clauses regarding termination, probation, resignation, and how the $50,000 amount was arrived at.

      On one interpretation it sounds like they intend to spend $50,000 over time on training and want reimbursement if your friend leaves before two years. In that case I suspect they could only ask for reimbursement of actual moneys spent less any benefit they may have received. Or, is it a bond where they have paid a $50,000 sign-on incentive and want it back if your friend leaves within two years, reduced pro-rata for time served, in which case he would probably have to repay it.

      My recommendation is consult a lawyer.


  33. Hi David, I am an employer with a casual employee on a probationary period. They carry out full-time hours and have been on the job since September 2020. Due to the non-performance of the role, I decided to performance manage them and support them to try and engage in the role in a more appropriate way. The employee agreed to the terms of the Performance management. After 2 weeks we have reviewed and although the employee has made some improvements, there is still a long way to go, I have stated that they will continue to be performance managed for a further 2 weeks and that their hours will be cut from 38 hours per week to 25. I also gave them the option of being supported to leave the position and find another role if that was their choice. This did not go down well and they are now stating they will probably need a lawyer because when I employed them they were promised full-time work. I did tell the employee that if they were able to meet the demands of the job and increase referrals and their clients, then I would look to put them on Full Time, however that has not happened as the person has not met the demands of the role. Can you please tell me my obligations here?. I want to do the right thing by them but also cannot afford a non performing staff member. I am a small business with less than 15 employees. Thank You

    1. Hi Johnathon,

      It sounds like you have done all the right things. A casual employee doesn’t have any gaurantee of ongoing employment but in any case you are still protected from an Unfair Dismissal Claim because they haven’t been employed for the Minimum Employment Period, which is twelve months for small businesses. I am not sure why you reduced the hours but that shouldn’t matter because they are casual. If you are worried about that, you could always let them go immediately.

      Hope that helps.


  34. Hi David,

    I was in an acting role for 6 months, then promised that it will turn to a full time role once approval is received for the job to be advertised, which continually kept getting delayed.
    I ended doing that role for a further 4 months before i got the job full time. I have tried to get back pay for the last 4 months for doing the higher duties which I was expected to do, but I was told by HR I will not be getting back pay, as i didn’t have to agree to do the higher duties.
    In hindsight I feel I was left with no option, don’t do the higher duties and not get the full time role or do the higher duties and not get paid. Is there anything I can do to get the 4 months of back pay, Thank you.

    1. Hi Lee,

      This is a difficult situation where you have to weigh up the value of the back-pay against the likely aggravation that chasing it will cause. I suspect that you are entitled to the back-pay but you would need to consult a lawyer to be sure. Then you need to consider whether the company might retaliate, even in some indirect way, and make your tenure unpleasant if not impossible. If you are a member of a Union, you could ask them to pursue it to keep you away from any confrontation.

      Good luck.


  35. I am 3 months into a 6 month probationary period and would like to leave as I am not happy. The contract states that my employer can give me 1 week of notice in the 6 month probationary period yet on further inspection I am required to provide 3 months. Is this enforceable and is there a way I can get out of this position sooner? I potentially have another offer however they will wait up to 6 weeks and I will lose the opportunity if 3 months notice is enforced.
    If I hand my notice in and try to negotiate an early exit and they say no I risk having no job. Any advice would be appreciated.

    1. Hi Geoffrey,
      This is a personal opinion and not legal advice, you should consult a lawyer before you act.

      You have signed a contract agreeing to 3-months’ notice and on the surface that is what you are bound by. However, that is a long time and I have to wonder how your employer could justify such a restriction in court if it came to that.

      Things a court would consider include:

      • How critical is your job?
      • Could they replace you easily?
      • Would your abscence cause significant damage to the company?
      • Are you taking company secrets to a competitor?
      • What have you done to mitigate any inconvenience?

      So, in my humble opinion, I would suggest you start by offering one-week’s notice on the basis that they have indicated they can get rid of you in a week so there can’t be any significant hardship in doing so. Then, if you need to, negotiate a compromise gradually working up to a maximum of six weeks. If they insist on three months, give them six-weeks’ notice in writing and spell out in detail how you have tried to negotiate a reasonable compromise, and that your new employer can only wait six weeks maximum. This document will be your defence if it ever goes to court so don’t scrimp on details. I seriously doubt the company would start court action but they may threaten it, so be prepared for that. Of course, they may also be very ameniable to letting you go early.

      As I said, this is a personal opinion and not legal advice, you should consult a lawyer before you act.

  36. Hi David,

    Reading all your replies, thought I will get some insight from you in my case.

    I worked for a company for just over 5 years and then moved to another company. 4 months down the track, the owner of the previous company calls me to offer me a manager position and said that I will be better placed to handle the position. We spoke and decided there will be no probation and will re-instate my long service leaves etc which the contract stated. 1 month later we were told that the company was sold and we were all offered same position in the new company. The manager of the new company had a meeting with us and discussed the contract, we asked about probation on the contract, he said don’t worry about it as it’s just a standard contract and we won’t be as our service leave will roll-over etc. After a few weeks, just found the manager lied and the 6 months probation is being enforced. They have been treating us quite poorly since the merge. They even changed my job position from manager to technician. I recently quit as all these had quite a toll on my mental health and I couldn’t take it anymore. When I quit, they threaten that they will sue me or the new company if any of the client moves across (they knew this was going to happen). The only clause in my contract is about confidentiality which I think means not giving out the company details etc. I will like to know what are my rights please and how will this play out. Thank you very much for any advise.

    1. This is quite complicated and really needs a lawyer to advise you. However, my humble personal opinion, which must not be mistaken for legal advice, is that you should get full entitlements for five-plus years of service and you should abide by the confidentiality clause. However, as you say, confidentiality usually refers to company information and if the clause doesn’t say “Do not approach or contact our customers for six months” you should be fine. In any event, if one of your customers hears that you moved and wants to follow you, that is their prerogative and doesn’t breach your confidentiality.

  37. Hi David,
    I hope this question is not too much trouble, but I was wondering if you might be able to help.
    I have recently obtained my first job at a restaurant and have commenced my probation period three weeks ago. So far I haven’t made any massive mistakes, however, I’m just concerned if I will have adequate time to learn all the necessary skills on a casual roster before my company makes their decision on whether or not to keep me on (which should be in three months time).

    The nice lady I work with is very helpful, but she often does all the duties for me. It was only on my recent shift with a more senior man working there that I was able to do most of the work myself, and I found him extraordinarily helpful.

    At the moment I’m mainly wondering if you had any advice on when I should perhaps approach my manager and ask her for advice on how I’m going and how likely it is that I may be kept on at a later date.


    1. Hi Courtney,

      Starting a new job is usually stressful, especially when it’s your first time! While there are no hard-and-fast rules, here are a couple of suggestions that might help.

      • People who take an interest in the company, and the other employeees, tend to be more successful at work. Try to understand your job in terms of how it helps the business succeed and how it assists your co-workers and manager.
      • Develop a friendly rapport with your manager as soon as you can. Make a point of saying “Hi” when you arrive, and “Have a good night” when you leave. Show her you are easy to get along with and keen to be the best you can be.
      • Once you have some rapport, don’t ask “How am I going?”, say something like “I am learning lots but I’d like to priotise the more important duties. What tasks would you suggest I should concentrate on at this point?” This then allows her to point out your areas for improvement in a positive fashion.
      • Don’t ask “How likely is it that I will be kept on?” that only forces her to prejudge a decion at a time when you haven’t fully shown your potential. Instead say, in your own words, something like “I have come a long way but know there is much more to learn. I love working here and I want to become one of your best, most reliable workers. What areas of improvement should I be working on to make that a reality?” This gets her thinking of you as a long-term proposition.
      • With your colleague who is very helpful but does everything for you, tell her you want to get hands-on and learn by doing. You might want to apologise in advance for any mistakes but point out that is the best way to learn. You might also mention to her that you found your experience with the “more senioir man” taught you a lot because you actually did the tasks yourself.
      • If it doesn’t work out don’t be too hard on yourself. Every workplace has its own dynamic environment and some will be a good fit and some won’t.

      Best wishes for your future.


      1. Hi david.

        I have a question. I was a full time employment with my company with 6months probation however due to my job we fot assaulted at work. And my friend got hospitalised as a resulted of this incident at work place. And i was in duty with him at the time. And i got assualted aswell. Doctor confirm this was a secondary assault. However mt work place message me and told me to come visit them at office and they terminate my contract and i been with them 5months can u please advice me what i can i do thank u david.

        1. There are several aspects to this and you will need a lawyer to properly advise you.

          • First, you haven’t been employed long enough to access the Unfair Dismissal provisions, so that is not an option.
          • However if your termination was for a reason protected by the Fair Work Act 2009 (Cth) you may be able to make an “Adverse Action” claim. One of those general protections is “Termination for temporary absence due to illness or injury”. Your case would be further strengthened because the injury happened at work. There is no minimum employment period for these claims so this is an option.
          • Another possibility is that your termination was nothing to do with the injury and was entirely legitimate.

          If you feel you have case, consult a lawyer.

  38. Hi David, I have been working with a company for almost seven years, recently I have been told to relocate to another property voluntarily with a new contract which indicates the new contract will replace all previous oral and written contract. Also, my employment will be subject to a probationary period. My position basically will remain the same at another property, do I have a right to reject the new contract because it might affect my long service entitlement and uncertainty during the probationary period. Thank you.

    1. A company does have the right, within reason, to to issue a new contract and typically that would replace all previous contracts. Assuming you are staying with the same company at the new location, your length of service is unbroken. The inclusion of a probationary period may just be a standard clause in their employment contracts but in any case you will still have access to unfair dismissal provisions should the need arise. Before you sign ask for clarification on these points and you could ask to have the clarifications included in the contract just to be sure.

  39. Hi. I began a job on July 23rd 2020 on a 3 month probation. On the date of the 3 months (Oct 23rd) we were supposed to have a review on the Friday but we never did as we were busy. On the Sunday afternoon, my boss sent me a text saying that I would no longer be needed at the factory and that he would call me on Monday at 8am, which he did. He explained that he thought I was too qualified for the job and that I wouldn’t be fulfilled (which were my exact thoughts too) and so he told me that I was no longer needed, which was fine with me. The end of the 3 months probation coincided with end of pay week, which was convenient. My question is, am I entitled to one weeks pay seeing I was there for 3 months?

      1. Thx David. The probation finished on a Thursday, Friday was a public holiday and I was terminated over the phone on Monday. When the 3 months probation is finished, both parties can choose to remain or part ways. If either party chooses to move on, does notice have to be given either by me as an employee or them as an employer and if so, what length of time?
        Also, should I be given a letter stating why I was terminated or that doesn’t apply with 3 months probation? Also just asking again for clarification – with the 3 months probation finished, I am entitled to 1 week’s holiday pay yes, or it doesn’t apply if you’re terminated just after the 3 months? Sorry for all the questions – the 3 months probation and my rights are confusing!

        1. Hi Claudio,

          All good questions!
          You are entitled to:

          • One week’s notice (or payment in lieu)
          • One week’s annual leave (or payment in lieu)
          • You may, or may not, get a termination letter at your employer’s discretion. You could ask for an Employment Separation Certificate which sets out your dates of employment and final payout.

          Here are the webpage references in case you need to explain this to your employer.

          This is from the Fair Work Ombudsman page “Probation”

          Employee entitlements on probation
          While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.

          If hired on a full-time or part-time basis, an employee on probation is entitled to:

          • accrue and access their paid leave entitlements such as annual leave and sick leave.

          If an employee doesn’t pass their probation, they are still entitled to:

          • receive notice when employment ends
          • have their unused accumulated annual leave hours paid out.”

          This is from the Fair Work Ombudsman page “Dismissal – how much notice?”

          When an employer dismisses an employee, they have to give them notice. The notice period:

          • starts the day after the employer tells the employee that they want to end the employment
          • ends on the last day of employment.

          Minimum notice periods
          An employer has to give the following minimum notice periods when dismissing an employee:
          Minimum Notice Periods Table

          This is from the Fair Work Ombudsman page “Annual Leave”

          • All employees (except for casual employees) get paid annual leave.
          • Full-time and part-time employees get 4 weeks of annual leave, based on their ordinary hours of work.
          • Annual leave accumulates from the first day of employment, even if an employee is in a probation period.
          • The leave accumulates gradually during the year and any unused annual leave will roll over from year to year.
          • When employment ends, an employee has to be paid out all unused annual leave as part of their final pay.

          If an employee gets annual leave loading during employment then it also has to be paid out when employment ends. Annual leave loading is paid out even when an award, registered agreement or employment contract says that it’s not.

  40. Hi David,
    I have recently resigned from a position and have been threatened by my previous employer citing Supreme Court Action, regarding the restraint period.
    During the year I was placed on reduced hours and working from home at the height of Covid19, a new employment contract was entered into once I returned to full time work, the contract dated June, therefore I am now still in my probation period, even though I have been with the company for some years.
    Does restraints still apply when you are on probation? The company I previously worked for wants me to not work for 9 months in my profession and within a radius of 25klms.
    Can you help please?

    1. Hi Denise,

      There have been many cases with various results. The courts look at many factors including the wording of the clause, length of service, sensitivity of information, competition etc. etc. I am not sure if the probation period will have any effect but it would be one more factor to consider.

      I doubt that you could be restrained from working in your profession totally and if that is what the clause says it may be so broad as to be unenforceable. See Clayton Utz article “Restraint unenforceable” for example.

      You really need a lawyer to look at the factors in your particular case.

      Best wishes,

      1. Good day David
        Our company has just merged/restructured. I am abit confused by the words being used. The company recognizes and agrees that the commencement date for employment 01 November 2020 as it was when you commenced employment with XX Inc / ZZ Incc. Due to your(mine) commencement date of employment being 03rd August 2009, you(me) and the company have agreed to waive any probation period.

        My question is, will my service period continue from 2009 to date or will it be waived (discontinued) completely. Please I need to understand this matter clearly as I need to sign a contract which is due today.
        Your assistance in this regard is highly appreciated. Thanking you

        Kind Regards

  41. hi David
    i have a full time signed contract stating my probation period is 3 months, however after being employed for over the 3 months was told i know longer have a job and they have a right to terminate my employment within a 6 month probationary period and are exercising that right.
    im wondering if this falls under unfair dismal as i never received any warnings of misconduct or poor performance and it clearly states in my contract a 3 month probationary period.

    1. Hi Courtney,

      Probation periods are not all that relevant in regards to unfair dismissal. The critical measure under law is the Minimum Employment Period (MEP) and until you have reached that you cannot access the unfair dismissal provions.

      Here is some information from the Fair Work Commission:

      “The minimum period of employment is:

      • one year continuous service for employees of small business employers, or
      • six months continuous service for all other employees.

      The period of employment starts on the date the employment commences. The period finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier.”

      “What does ‘month’ mean?
      A month means a calendar month. A calendar month begins on a date and finishes immediately before the corresponding date in the next month. For example, a period of 6 months commencing on 26 February 2009 would finish at midnight of 25 August 2009. If there is no corresponding date then it finishes at the end of the next month.
      An employee’s period of employment commences on the employee’s first day at work.”

    2. Your employment can be terminated, but it sounds like its nothing to do with probation if you have completed the probationary period. As you are within 6 months from commencement you don’t meet the minimum employment period/ qualifying period to take an unfair dismissal claim (that is likely what they are referring to). You need to know the reason for your termination to know what, if any, grounds you have. It is likely that you are being made redundant by the sounds so they need to follow that procedure (which could be as per an Award, Enterprise Agreement, etc). You should be paid notice (which in reality will probably be 1 week pay but again depends on the industrial instrument). If they tell you you are being terminated and any of the grounds are unlawful then you can take an unlawful termination action (at any point, three, six, whatever months don’t matter).

  42. Hi,
    I have been in a full-time 1 year contract for less than 3 months and have provided my employer with 2 weeks notice. I had signed a contract stating that I would need to require 4 weeks notice but was unable to do so as I will be starting at a new job. What are the consequences of this? Thank you.

    1. You are breaking a contract and it will be up to your employer to either accept that or take legal action.

      Hall Payne Lawyers blog offers this advice:

      “If you are in breach, it is possible that a court could make an order for specific performance of the employment contract by you; see, for example, the case of Quinn v Overland. However, this is unlikely as courts are generally reluctant to make these orders and have previously likened them to slavery.

      It may also be possible for your employer to sue for damages. For example, if you resign without giving the required notice, a former employer may sue for the value of the unexpired term of the contract or the additional costs involved in finding a replacement. This is uncommon and unlikely to be cost effective for the employer. However, the risk increases for employees that are highly skilled and/or difficult to replace.”

  43. Hello David.
    An employee is hired for a position, then within 2 weeks of starting obtains a non job related injury and can not work. Are you able to terminate on grounds they can not perform job they applied for? He has been given 2 months but is still not able to come back to work and the position needs to be filled?

    1. Your employee is protected from dismissal until they have been absent for over three months, see below. However, it might be worth discussing his prognosis with him as he may choose to resign if he is unlikely to return for an extended period.

      This is from the Fair Work Ombudsman “Long periods of sick leave”

      “Protection from dismissal while on sick leave
      Employees who are away from work temporarily because they’re sick or injured may be protected from being dismissed.

      To be protected from dismissal during a temporary absence from work:

      • the total time away due to illness or injury must be less than 3 consecutive months, or a total of less than 3 months over a 12 month period
      • employees can be taking paid, unpaid or a combination of paid and unpaid sick leave during their absence
      • employees need to provide evidence of their illness or injury.”

      “Employees who take a period of sick leave that is paid the whole time are protected from dismissal regardless of how long they’re on leave.

      Employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by:

      • making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
      • making a general protections claim if the reason for the dismissal is another protected reason, or
      • making a claim under a state or federal anti-discrimination law.”
    1. Well that’s just plain stupid! She/he is playing psychological games probably hoping to keep you on edge so you perform better or so you don’t complain about unsafe or unsavoury conditions. This is poor management that will undermine morale and be counterproductive long term.

      Probation periods are really quite irrelevant as you still have to be paid the right rate, you still accrue all your entitlements, and once you pass the MEP you can access unfair dismissal provisions if you need to in the future.

      Doesn’t sound like a very good workplace, keep your eyes open for other opportunities.


      1. My contract clear states 3 months in the schedule. Under the Small business provisions does this over ride the 12 months MEP

        And you are so right about the above

  44. HI David
    Is your annual leave excluded from Probationary period?
    So, my 6 month probation is next Tuesday but I have just taken 6 days annual leave
    Is that added to the official date as I was on approved leave?


    1. There are two aspects to this, the probation period terms and the Minimum Employment Period (MEP) legislation.

      The minimum period of employment is:

      • one year continuous service for employees of small business employers, or
      • six months continuous service for all other employees.

      The period of employment starts on the date the employment commences. The period finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier.

      If you are asking the question in case you are dealt with harshly, unjustly or unreasonably in which case you might want to take action under the Unfair Dismissal provisions, your probation period is secondary to the MEP, which gives you access to the Unfair Dismissal provisions upon completion. Paid personal leave is counted as continuous service and does not extend the end date of the MEP. However, the following periods are excluded from the definition of ‘service’ and therefore do extend the MEP:

      • any period of unauthorised absence, and
      • certain periods of unpaid leave or unpaid authorised absence (there are exceptions for community service leave, certain stand downs and prescribed leave or absences). See What is an excluded period?

      On the other hand, if you are just asking to see when your probation period ends and you become permanent, then you would need to refer to the terms of your probation contract and any relevant industrial award or agreement to see if there are any clauses that specify this situation. If no clauses are found then you are probably safe to assume that the same terms as the MEP should apply.

      Hope that is helpful. Best wishes for your career.

  45. Hi David,

    After my supervisors resignation, i was put in his position in an acting role for 3 months, with a view to apply for the position after the 3 months. Unfortunately Covid hit and my employer put a hold on new jobs and the acting role got extended for a further 3 months. That 3 months has ended but my employer are still not advertising new roles and they advised me the acting role cannot be extended, as 6 months is the limit for an acting role. I am now combining my old & new role on my old salary. I was wondering is the 6 months acting role information correct because i was unable to see it anywhere on my award or is there anything i can do be put back on the higher salary, thanks for your help.

    1. Hi Michael,

      Apart from your Award, which you have already checked, there might be an Enterprise Agreement, Company policy or employment contract that might mention this situation. You would need to check each one that applies to you. Even if there is a clause somewhere that says an acting role can’t last more than six months, you would have to ask “What does that mean?”. Does the role then become permanent? Or, do you return to your old duties? Surely it doesn’t mean that you keep doing the duties but return to your old pay.

      In any event, Awards usually detail the duties performed for each wage level. If you can show that you are performing the duties of a higher wage level, you should be paid at that higher level. If this goes on for an extended period, there may be a substantial underpayment breach. The Fair Work Ombudsman say underpayment may occur for a number of reasons including “an employee’s duties change – more responsibility or different duties can mean the employee is classified at a higher level under an award or agreement”. You might want to start a log of your daily duties to be used as evidence should the need arise.

      In these situations it is usually best to discuss your concerns with your employer. Any reasonable person would see why you want clarification and I suspect they are aware that they are taking advantage of you. If they stand their ground, you will either have to live with it or, if you decide to take it further, consult a lawyer.

      Best wishes,

  46. Hi David – my partner was told he had to write his resignation 5 days before he reached his 6 month milestone. The last date of his employment (with 1 week notice) was 2 days after the 6 month milestone. The employer said it’s not unfair dismissal because eligibility is from that date the resignation is written.
    Is this true? Are employers allowed to tell workers to write a resignation?

      1. The Fair Work Commission website How do you calculate the minimum period of employment? states: “The period of employment starts on the date the employment commences. The period finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier.” This means your partner did not the Minimum Employment Period (MEP) required to access the unfair dismissal provisions.
      2. You ask “Are employers allowed to tell workers to write a resignation?”. In this situation where the MEP has not been reached, the employer is simply providing the employee an opportunity to resign. The employee can refuse to do that and be sacked instead, which won’t look as nice on the worker’s resume.
  47. Hi There,
    My employment was terminated 20 days before I had worked at the company for 6 months.
    I was fired due to COVID-19 complications rather than “performance” which was the reason given, but I was already pregnant that time.
    I really appreciate your thoughts.

    1. You can’t claim under Unfair Dismissal but you might have a case of “Adverse Action” if you can show that you were discriminated against because of your pregnancy.
      Do you suspect that is the case?
      Did your employer know that you were pregnant?
      Were any comments made about your pregnancy?

      You will need to talk to a lawyer who will examine the circumstances and advise if there is a case to answer.

      Best wishes for you and your growing family.

  48. Hey there,

    Great article – thank you!

    I am still in my probation, and want to resign. My employment contract says the business only needs to give me one week’s notice, but I have to give them 4 weeks notice during probation. I was advised prior to signing that an employer can not give a different notice period to that of which the employee has during probation? Is this correct, and can I give a shorter notice period, like 2 weeks?

    1. Hi Amanda,

      I have just done a quick search of the legislation and couldn’t find a reference that specifies the notice period must be the same for the employer and the employee. It might exist, but I just couldn’t find it. It does seem reasonable that the periods should be the same and if you have advice on that point, use it in your discussions. Talk to your employer and explain why you don’t want to work out the required notice in your contract. They might accept that they can’t hold you to the longer period, or may offer some compromise. If they insist on four weeks and you want to take it further, you should consult a lawyer.
      Best wishes,

  49. Hi
    I have been with a company for almost 2 years. They are restructuring and have made my role redundant, but have offered me another role at a lower rate. The new role actually covers almost everything I have been doing, but has left out some of my old role. I have been sent a contract but they have included a 6 month probationary period – is this normal/legal when I have already proven myself in the role and within the business? I don’t want to sign the contract with this clause in it and give away my unfair dismissal rights, or agree to reduce my notice period (currently 2 weeks, but under probation back to 1)
    Thank you so much

    1. Hi Annette,

      The Fair Work Ombudsman (see Employment contracts) advises:

      “An employment contract cannot provide for less than the legal minimum set out in:

      • the National Employment Standards (NES)
      • awards, enterprise agreements or other registered agreements that may apply.

      All employees are covered by the NES, regardless of whether they’ve signed a contract. A contract can’t make employees worse off than their minimum legal entitlements.”

      “If an employee’s employment is ended while they’re on probation, they still have to get or be paid out notice based on their length of service.”

      Therefore, in your case this would mean two weeks notice and access to unfair dismissal provisions as provided for in the National Employment Standards (NES).

      You will need to contact a lawyer for advice about any other terms and conditions in the contract.



  50. Hello I have 1 query that after 6 months probation is company make employee permanent…..

  51. Hi,
    I recently got employed by mid March and company set probation period for 6mths and that either party can terminate by giving 1mth notice in lieu after confirmation of appointment.
    Due to COVID they had to disengage me by mid June. Question is am I due for 1mth notice payment in lieu or not?… considering I had just spent 3mths with the company.

    1. You are entitled to a minimum of one week’s notice under the Fair Work Act.

      Your employment contract specifies a longer term but you say it includes the proviso “after confirmation of appointment” which I take to mean after completion of the probation period, in which case it doesn’t apply and you are only entitled to one week. A lawyer might find a loophole on examination of the wording in the contract if you wanted to take it further.

      Best wishes,

  52. Thanks for the article.
    One question from my side, if the contract duration is less than 1 year, does probation period has to be still be 3 months?

    1. Probationary periods are entirely optional. This is what the Fair Work Ombudsman has to say:
      “Employers can put their employees on a probation period (also known as a probationary period) to assess if employees are suitable for the role and business. The employer decides on the length of the probation period. It can range from a few weeks to a few months at the start of employment.”

      1. What if you worked for the company under a contract company for over 2 years, get a permanent position with a 6 month probation and then turn around with 3 weeks left and say that after 3 years working at the place that now they dont like you.
        There is mental health, family breakdown and other bits and pieces involved.

        1. Sounds like you’ve had a really tough time.

          You may not be able to access Unfair Dismissal but you might have a case of Adverse Action if you can show that the dismissal was discriminatory. Please note that you need to make an application within 21 calendar days of your dismissal taking effect.

          If you think it was discrimination you should consult a lawyer who will examine the relevant facts and circumstances. They will look at the reason(s), if
          any, given by the employer for your dismissal, and any letter of dismissal and/or separation certificate given to you by the employer.

          Discrimination occurs in the workplace when an employer takes adverse action against an employee or prospective employee because of a protected attribute.
          Protected attributes under the Fair Work Act include:

          • race
          • colour
          • sex
          • sexual orientation
          • age
          • physical or mental disability
          • marital status
          • family or carer’s responsibilities
          • pregnancy
          • religion
          • political opinion
          • national extraction
          • social origin.
          1. Hi, I’m in a job with a probation period, I found out I’m pregnant during this period, now they have found out from a third party of this and I have now been told they are after long term employee they don’t think it’ll work for them. Is that something because of my probation period they can do.

          2. It is illegal to terminate someone due to pregnancy. Termination in these circumstances comes under “Adverse Action” due to discrimination not “Unfair Dismissal”. Adverse Action is not restricted by probation or Minimum Employment periods. See Protection from discrimination at work

            You should document everything for evidence in case it comes to court. Document in detail with date, time, he said “…”, she said “…”, so you can prove that the termination was due to your pregnancy. Consult a lawyer.

  53. Hi David,

    If my employment contract has a 3 month probationary period with clause to extend to six months. However the employer has missed the 3 month period by two weeks. Can they extend my probation period post 3 months as they are saying that i have not been able to fulfil my substantive position due to COVID-19.

    I assume they can’t, but thought i would check.

    Thanks – look forward to hearing from you soon.

    1. Hi John,
      I very much doubt that they can extend the probation period retrospectively after the three months has expired. However, with Covid-19 affecting so many of us, I don’t think that is the main issue you should consider. If you challenge them to force a decision you may not like what they decide and could end up unemployed. Or, you could say that it doesn’t really matter because you are going to nail the job anyway and go on to prove your value.
      Hope that is helpful.


  54. Hi,

    I have just received an employment contract for a fixed term 3 year contract at a university, and it includes a probation period of 2 years which can be extended for a further 12 months if required. This means I would be on probation for almost all or all of the entire period of employment. This seems unusual, and unnecessary given the point of a probation is to see if you’re working out which one would think you could determine within the usual 3 to 6 months. Is this reasonable or legal? Do I have any recourse to challenge it?

    1. Hi Ingrid,

      That’s nuts! It is probably not illegal but it sure is nuts.

      Even on probation you still accumulate all your entitlements and you will pass the Minimum Employment Period at six months, which gives you access to the unfair dismissal provisions, so I don’t see what they hope to achieve. Maybe they want an “out” so they can cut the three-year term if their funding is reduced??

      Do they have a clause concerning termination during the probation period? If so, you will need a lawyer to advise you, but I don’t think it would be enforceable if it reduces your rights under legislation.

      I suggest you question that clause and try to get it reduced to three or six months.



      1. Hi David, i had received universitycontract with 6 months of probation period. But there is separate line says your employement is not subject to probationary period. What does this mean? University has Enterprise Agreement.
        Can i get clarity why then 6 months mentioned as probation?

  55. Hi David, in your advice you do not mention that people who may not qualify for unfair dismissal within the probation period may qualify for an adverse action claim in my understanding, pending their personal circumstances with their employer. Can you provide clarification on that?

    1. Thanks Ella, you raise a valid point. I have mentioned this occasionally but not for a while.

      Apart from the Unfair Dismissal provisions there are General Protections that are available and do not have a qualifying period.

      This is from the General protections (unlawful actions) page on the Fair Work Commission website.

      “The principal protections have been divided into:

      • protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements)
      • engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association)
      • other protections including protection from discrimination, and
      • sham arrangements.

      A person (such as an employer), must not take any ‘adverse action’ against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

      Adverse actions that can be taken against an employee or potential employee might include:

      • dismissing them
      • not giving them their legal entitlements
      • changing their job to their disadvantage
      • treating them differently than others
      • not hiring them
      • offering them different (and unfair) terms and conditions, compared to other employees.”

      Go to the General protections (unlawful actions) page for a more detailed explanation of each category and how to make or respond to a claim.

  56. hello David, i was working for a company since may of 2019 in a casual basis doing almost a full time job after all this time i got a contract as part time on feb of this year and now due the COVID-19 they fired me, in the letter from the company they put ¨Termination During Probationary Period¨ but it doesn’t mention any probitionary period on the casual contract and in the new contract it just say ¨this letter constitutes an amendment to your original contract of employment with the following changes conditions¨ after that they explain the new rules for leaves and termination but it doesn’t mention in this and the old contract any probitionary period, so i never knew that i was under that in the new position, so i don’t know if that was ok or legal as i signed a contract yes but it doesn’t say anything about that and they never give that information to me in any way.

    thanks for you help

    1. There are a whole range of factors to be considered in this scenario, not the least of which is, “What do you hope to achieve?”. Do you want your job back, or make an unfair dismissal claim, or just make sense of it all?

      The Covid-19 restrictions have had an enormous economic impact and many businesses can no longer support the number of employees they once had. Most businesses should recover but it may take some time to get back to where they once were. Your employer may have opportunities for you once restrictions are lifted and how you react at this point may have an impact on you longer term relations with this employer.

      Some thoughts:

      • The Federal Government has announced the JobKeeper package to help employers to keep paying their staff during the coronavirus crisis, in an effort to ensure workers still have a job once the pandemic has subsided. Businesses must have had a drop in turnover of at least 30 per cent due to coronavirus to qualify for the payments to give their workers. This may be something you could talk to your employer about to see if they can keep you on.
      • If you want to access unfair dismissal, there are a number of things to consider:
      • If your employer has less than 15 employees, you haven’t reached the twelve months Minimum Employment Period (MEP) of 12 months so cannot access unfair dismissal provisions.
      • If they have 15 or more, the MEP is six months and your service as a casual may count towards that if both of the following conditions are satisfied:
      • the casual employee was employed on a regular and systematic basis, and
      • the casual employee had a reasonable expectation of ongoing employment on a regular and systematic basis.
        See Fair Work Commission Periods of service as a casual employee
      • However, having access to the unfair dismissal provisions doesn’t mean you have a case. You will have to show that you were dismissed in a harsh, unjust or unreasonable manner. See What makes a dismissal unfair?

      I am not a lawyer and you cannot rely on my opinions. If you think you have a case, consult a lawyer. You only have 21 days from the date of dismissal to lodge a claim.

  57. Hi There,
    My employment was terminated 6 days before I had worked at the company for 6 months.
    In my employment contract it has a probationary period of 6 months, however I had a probation review at 3 months during which I was told I had passed probation. There are documents surrounding this meeting that my employer has.
    Due to this circumstances, does the 3 month formal probation meeting discredit the 6 month probation term in the contract. Also does the timing of 6 days before the 6 month mark allow for any room to approach fair work?
    I believe I was fired due to COVID-19 complications rather than “performance” which was the reason given.

    1. Hi Samantha,

      It really doesn’t matter if you passed probation. Because you didn’t reach the 6 month Minimum Employment Period you cannot access the Unfair Dismissal provisions.

      Even if you could, you would need to demonstrate that your dismissal was harsh, unjust or unreasonable. See What makes a dismissal unfair?

    2. Hi David,
      I work for big financial institution, i was under a 6 month probation period. 10 days before probation end date, on Tue i was advised over the phone catch that I had passed probation and will get a letter from Hr after 10days to sign off. On Thurs suddenly i was advised my performance has been poor and they will not continue which was came as a shock after confirming that i was ok.
      I did not have regular discussions but had performance goals set which needed improvement and I was successful in it. I was unwell in hospital with no support whatsoever. I was sick in hospital and no support was provided as well during this and was just constantly pressured for work.
      Do I have any right to take this further as there is no valid reason for dismissal and I think its just harsh and not justified.

      1. Hi Rina,

        Broadly speaking there are two areas that are looked at when considering taking action on a dismissal:

        1. Unfair Dismissal where the action was harsh, unjust and/or unreasonable. You need to have passed the Minimum Employment Period to be able to access the unfair dismissal provisions, so this is not an option for you.
        2. Then there are General Protections that do not have a qualifying period.

        One of those General Protections states “An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.” See Temporary absence – illness or injury for more details.

        You will need to talk to a lawyer to determine if you can mount a case in your particular circumstances. It will help the lawyer if you write down everything you can remember from the phone call advising you that you had passed probation and everything that was said when you were dismissed.

        Good luck.


  58. Thanks for the article David. I’m an employer looking to see if either I or my ex-employee is at fault and what consequences could come from our interaction. (I understand you are not a lawyer but I’d like a fresh perspective)
    He is within his 3 month probation period hired to open shop, answer phone calls, and on call on weekends, and provided over time if it occurs – it hasn’t. Last Friday I foresaw I would need extra hands on deck. This is our conversation via text, EE for his texts and OR for my texts:
    OR: (Fri @ 6pm) Can you come into work Saturday and Sunday?
    EE: (Fri @ 7pm) yes, see you tomorrow
    EE: (Sat @ 2am) I don’t feel like coming in
    OR: (Sat @ 7am) Are you feeling sick? Do you think you have COVID-19?
    EE: (Sat @ 11am) no I’m not sick.
    OR: (Sat @ 6pm) so you’re quitting
    EE: (Sun @ 3am) I don’t know. Can I let you know next Monday?
    OR: (Mon @ 11am) You haven’t showed up to work for 3 days now when you said you’d come in, you said you are not sick, and you’re asking to not come in for an additional week. I just paid you 7 days ago on the 16th..
    EE: (Mon @ 2pm) Can you mail me my check?
    OR: (Wed @ 9am) I am having ____(my other employee)____ directly provide your check to you at your home address. Please mail me our shop key asap.
    EE: (Wed @ 10am) I received my check for the days I worked… Don’t worry, I’ll mail you your key. I feel really sick in the way you fired me when I thought I could come back to work next Monday. You just fired me out of the blue and gave me my check. I don’t think it was right because I’ve worked as hard as I could, especially during this pandemic
    OR: (Wed @ 9am) What? You ASKED for your check
    EE: (Wed @ 12pm) Well I was thinking about coming back to work on the following Monday but you suddenly fired me instead so I wanted to make sure you wouldn’t take away payment. This situation makes me feel really terrible

    Am I in the wrong to assume he quit? In what ways do you think he could retaliate?

    1. Change your locks. Even if he does send the key back he may have made a duplicate. Other than that, from the texts, it seems reasonable to assume he did quit although he might argue that he didn’t actually say so exactly. However, you could argue that he abandoned his employment by not coming in on three days in a row when he said he would. In any case, as he has only been there less than three months, he cannot access the unfair dismissal laws so there is nothing he can do legally.

  59. Hello! I am almost three months into my probationary period and I would like to resign. My contract says “your employment may be terminated during the qualifying period without notice” based on that, does that mean that I can also terminate without notice?
    Thanks in advance

    1. Yes, from the information you have supplied you can resign without notice.

      BTW: Assuming you not a “casual”, your employer is required to give a minimum of one week’s notice under the Fair Work Act, so that clause is invalid from their perspective. However, an employee can give notice according to their contract or workplace agreement, so you are okay.



      1. Thanks for your help David.
        I did resign and it was agreed to finish me up the same day.
        Am I entitled to any accrued annual leave.

        1. If you were employed as a permanent employee, not a casual, you are entitled to the accrued annual leave payment, which after three months will be about one week’s pay.

  60. Does a casual employee on full time hours during her probation period get paid for leave her employer as asked her to take – The circumstances – after having a holiday in Singapore which is at Moderate risk of Corona Virus atm; she still took it upon herself to go. Her employer insisted that she get tested/ cleared from the virus prior to returning to work. Please advise if employee should be getting paid here? Many thanks

    1. Casual employees do not get paid leave and have no guarantee of onging work beyond their current shift. So, no, you are not entitle to pay.
      Some might even say that you should self-impose isolation for 14 days after returning from overseas just in case.

  61. Hello my name is Rudy. I was told that my probation period is a six month period. After working 6 month and 18 days I was let go with no write up, negative comment, or reason why. Is this legal? I also work some night on the weekends and days as well.

    1. Hi Rudy,
      The significance of passing the 6 month period (12 months for small firms) is that you now have access to the unfair dismissal regulations. It sounds like your dismissal may not have followed the correct procedures and may therefore be considered “unfair” by the courts. Some things to consider…

      • The Fair Work Ombudsman defines Unfair dismissal as “when an employee is dismissed from their job in a harsh, unjust or unreasonable manner”.
      • You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.
      • The Fair Work Commission offers free legal advice at Workplace Advice Service
      • Some legal firms offer a “no-win, no-charge” service but be careful to check what it will cost if they do win.
      • What do you hope to gain and is it worth the trouble?

      Best wishes,

      1. Hi David,
        I have 1 question, if during probation period (before 6 months of joining) termination w.e.from Thursday then Friday will be paid or unpaid by the employer??
        Please solve this, awaiting for your answer.

        1. The Fair Work website states…
          “When an employer dismisses an employee, they have to give them notice. The notice period:

          • starts the day after the employer tells the employee that they want to end the employment
          • ends on the last day of employment.

          So, if I understand your question correctly, you have been given notice on a Thursday, so the notice period starts on Friday and goes through to the end of your shift on the following Thursday. You get paid for Friday through to Thursday.

          Hope that helps.


  62. I read online that even if you sign a employee contract, stating that you have to give two weeks notice for leaving. Then you have to sign a separate contract during under probation you have to give such and such notice would this correct

    1. The probation terms could specify a different notice period to that of a permanent employee as long as it is no less than the legislation and/or workplace agreement requires.

  63. I am still with in my six month probationary period and in my contract it states that Termination of employment by either party during the probationary period is on the basis of one weeks notice. I am only waiting on my new contract before I give my notice, of which I will do properly and as amicably as possible; I am worried though can my current employer refuse to pay me out if I abide by the contract?

    1. Not sure what you mean. You have a contract that says one week’s notice, why are you waiting on the “new contract”? If you intend to give notice it would be unethical to sign a new contract. Your employer can’t refuse to pay the notice, but may choose to either have you work through the period, or pay you out and let you go immediately.

  64. Hello,

    I started a job less then 4 weeks ago as a permanent part-time employee, I was given a 6 month probationary period. However, after hearing nothing but positive feedback and even higher role offers within the company. Yesterday my employment was terminated with 1 weeks noticed due to other staff saying I have a negative attitude? I had no prior meetings about this issue and when asked the company could not clarify where i was being negative and what i had been saying.. Is this termination allowed?

  65. My friend has just been terminated during her probation period. They lied extensively to say she had under performed. I understand that’s essentially allowed. However when we went into the final meeting about her probation she saw how it was going to play out and asked that she be allowed to resign. She wanted to leave on her terms after all the bs. They said they couldn’t allow that because they had already verbally stated she’d be terminated. As it would have made no difference to notice or payout etc why would they say that and why would it matter and is it actually true that you can’t let someone resign if you’ve verbally said you’d terminate??

    1. I suppose in a strictly technical sense an employee can’t actually resign after they have been terminated because they are no longer employed. In reality and for all practical purposes the employer and employee should be able to negotiate the terms of separation, which may include a resignation rather than a dismissal. However in this case it appears that the relationship is so poor that the employer wants to make a point that this is a termination. That’s okay, not every job is going to work out and it shouldn’t affect future opportunities as long as it is a one-off and not a pattern of employment. In the resume and at interview your friend should avoid being vindictive and, if asked, just say something like “it was a difficult environment and I couldn’t get my head around what they wanted so we parted company”.

      Hope that helps,

  66. I started a job in May 2019 and I signed an agreement to start work form dated the 29 May, 2019 being put straight away into a 6 month probationary period. To my knowledge there is definitely no written or verbally recorded warnings. My last worked day to date was the 23 December. Upon the completion of the probation period I asked the question about permanency and was flat-out turned down without a valid reason. Does the employer have a case to answer?

    1. Hi Brian,

      From your desription it sounds like you were employed as a casual. If that’s the case, you quite rightly exercised your right to ask for permanancy after your probation period and your employer quite rightly exercised their right to refuse it, so no case to answer. However, if you were hired as a permanent and have actually been terminated without fair process, a lawyer would need to examine the details of your contract and the dismissal to determine if you have any course of action. Even that seems doubtful to me.

      All the best for your future.


  67. Hi, I was hired 6 months 2 days ago with a company of over 30 employees.
    I signed a contract for 6 months as an Operations Manager and 2 days ago I was officially permanent.
    Today i recieve an email stating that my probationary period would be extended by 3 months.
    Reasons for extension were that company service levels were were not being met. This was due to new staff who were not capable of thier roles.
    Is this leagal ?

    1. Hi Jason,

      There are a few issues here:

      1. The Minimum Employment Period (MEP) in the Fair Work Act makes the need for a probation period mostly redundant. Extending the probation period does not extend the MEP. You have completed six months of service and therefore have access to the Unfair Dismissal provisions regardless of whether you are on probation or not. Really, there is no need to have a separate probationary period within any employment agreement.
      2. Technically, the employer cannot increase the probation period unless the original contract made provisions for it. It would need to have said that the employer has the option to extend at their discretion, or words to that effect. But even so point 1 above makes it a pointless exercise.
      3. However, a probationary period may also be used as a psychological tool to make the employee understand that they are being scrutinised by the employer for the duration of the probation period.

      Hope that helps.


      1. Hey guys, i am in similar situation where i have been told by my employer on my last day of 6month probationary period that this period would be extended by another 3 months.
        There is no clause or mention of extension in my contract. I replied in email that i did not approve and took a leave annual leave.
        Discovered by pay advice while on leave that i was terminated. No notice, no reason was given or corresponded.
        Every action i took was documented via email. Blunt guess but im pressuming this is unlawful under the act ? Sorry to hijack the thread.

        1. Hi Jay,

          It does sound suspect but you would need a lawyer to look at your contract, emails and payslip before deciding if you have a case. At the very least you should have received notice or payment in lieu of notice.

          For what it’s worth, here’s some comments that are too late in your case but may be helpful for others who read this post.
          Employers quite often get too busy to monitor progress through the probation period and when the end comes they don’t have sufficient information to make a sound decision, so they say “Let’s run this for another three months” in the hope they will miraculously start to monitor progress and be able to make that sound decision then. Two main things to note here:

          1. If your performance had been noticeably poor, you wouldn’t be offered an extension at all.
          2. If your performance was noticeably outstanding, they wouldn’t hesitate to make you permanent.

          Therefore, if you are offered an extension, it would be reasonable to assume that you are doing okay but there is some uncertainty about the longer term. This doesn’t need to be adversarial. Refusing the extension forces the employer to make a decision based on the limited information they have and typically they will err on the side of caution and let you go. However, if you accept the extension with an attitude of “I really want this to work, what do I need to improve?” and discuss some performance indicators, you will be demonstrating your worth to the organisation (assuming you deliver on the performance indicators).

          Hope that is helpful.

  68. hi David it seems this probationary period can be a minefield for some.
    I have been working in my position for 7 years – two of those recent years under different management than what I started under but same role. With a recent change in manager (not management) I have been given a new contract to sign with a probationary period of 3 months. As you mentioned above this should be a redundant adjunct to the contract? I have not yet signed the contract as there are more than this issue wrong with it.

    1. Yes, it is a bit ridiculous to suggest a probation period after seven years in the job.

      On an optimistic reading, perhaps what the manager is meaning to implement is a performance management review process, which would be more appropriate. Perhaps you could ask what the intent is meant to be and sugest more appropriate wording.

      However, to infer a darker meaning, maybe they are setting you up for dismissal and are trying to avoid notice and/or redundancy payments. I doubt they can contract out of those obligations, but they may try.

      It might be worthwhile haveing a lawyer look over the contract and advise you.

  69. I started a job and my work agreement which is signed from my manager does indicate exactly the probation period (like how many months).
    The only thing mentioned is ” after completion of the probationary period the employer may terminate this agreement without cause at any time by providing the employee with three weeks pays in lieu of notice.
    By signing this agreement the employee acknowledges and agrees that the payment in lieu of notice set forth above constitutes reasonable notice and reasonable compensation for the termination of his employment”.
    I do not understand here if I the probation period is applicable for my case or not.
    Thank you

    1. Where you say “…does indicate exactly the probation period (like how many months)” I am assuming you meant “does not” otherwise you would have said how many months.

      Your IP address suggests you are in Canada, and I am in Australia and don’t know the Canadian laws. Here we have specific laws governing notice periods and fair termination processes. The contract you describe would be an attempt to circumvent the unfair dismissal provisions and would therefore be invalid here because they cannot contract out of a legal obligation. Your local laws will be different and you will need to check locally for your situation.

  70. Hi
    I’ve been working at a company for 6 months started 13 May and by days worked 6 month was up 28 oct or does it have to be the 13th November. My contract said it’s 6 month so not sure if it goes by days worked or ?
    I was let go today and as always no reason
    Thanks for your feedback

  71. Hi David,
    I have been working for 3.5 years a Manager under a common law contract. I applied for an Area Manager role and was fortunate to get selected for the job. I have now been asked to sign my new contract and there is a 6-month probation period in the contract. I queried it before signing the contract as it was my understanding that probation periods should be for an initial period of employment only and should not apply to an internal promotion. It was my understanding that normal performance management processes should be followed if I were to not meet a role requirement. HR have responded via telephone stating that I am untested as an area manager and that legally a probation period can be added to my new position. Is that right? (it certainly doesn’t feel right).

    1. Hi Rob,

      I don’t think it is illegal but it is largely redundant. One purpose of a probation period is to set a timeline for deciding to keep or dismiss without having to explain too much. That only works if the employee hasn’t passed the Minimum Employment Period, which you clearly have, and therefore has access to the Unfair Dismissal provisions. So, in your case, the probation period can’t take away your rights to a fair process of performance management. It is probably there to highlight the fact that you are being monitored closely during this period, in which case you could turn it to your advantage by asking for and documenting regular feedback on how they see your performance, what you are doing well, and what you should improve.

      I can understand the company’s perspective very well. I have been in that position a few times where a good employee wants to be promoted and to do so means back-filling their old role. Therefore there is no longer a position to come back to if it doesn’t work out. In these cases I didn’t exactly use the term “probation period” but I did make it clear that it was a one-way step – either succeed or leave. Taking away a fall-back position is a powerful incentive to do well.

      You obviously think you are capable of doing the job otherwise you wouldn’t have applied. Have faith in your abilities, prove your worth and make the probation period truly meaningless.

      Best wishes,


  72. Hi, I was in my probation period and I was one week off of it finishing I was called into the office and was told that my probation period was just about finished so I was being sacked effective immediately. I was shocked I had been told I was doing a great job. I had never been reprimanded or informed that my performance was lacking in any areas of my duties. The only reason given was that my probation was almost finished. As I was not there for six months I can’t claim for unfair dismissal. What do you tell future employers as I have no idea why I was terminated. Can you tell future employers that you have no idea?

    1. Sorry to hear of your situation but it is not uncommon. Bosses are often too busy to provide constructive feedback until it is too late and end up making a snap decision as the probation end nears. So don’t be too concerned about telling future employers exactly what you have said here, the fact that you have “no idea” says more about your previous employer than it does about your performance. Alternatively, it wouldn’t be untrue to say that it was a six-month contract that came to an end.

      Best wishes for your next position.

  73. Hello,
    I was dismissed after less than 4 months working for them, my probation period was set for 6 months. The thing is, I was hired as a software developer, but after a bit more than a month they asked me to act temporarily in a different role, as a busyness analyst, which I had never done before. They really needed it, I naively accepted it trying to help. During this time I was put in a very difficult position having to work in site with their client and having to perform as an experienced BA. To make things worse I didn’t have much support from my superiors, neither from co-workers, only demands and sarcasm when I most needed help. After dedicating myself doing extra hours, I was fired today, the other BA that was on maternity leave will be back on Monday. I asked for one reason for my dismiss and rudely I got “For a number of reasons” but nothing explicitly pointed out.
    I have a 2.y.o daughter and wife to support, felt like rubbish and betrayed. I read that I am not eligible for an unfair dismissal as it has been just 4 months, but is there anything else that can be done? I felt used and treated unfairly. My concern is searching for another job and having to either lie about my previous employment or how can I explain all of that, all they will think is “He didn’t pass probation”. I feel very stressed and wronged.

    1. Hi Bruno,

      Very sad and difficult for you. You have my sympathy but there is little that can be done in these circumstances. Your treatment indicates that they are probably not a good company to work for so you might take some solace from that. Move on to your next challenge and try to forgive and forget, otherwise it will eat away at you for zero benefit.

      With regards to your resume, just describe the job and list any achievements. It would be fair for you to say that you back-filled the BA role while the incumbent was on maternity leave and finished up when she was due back. If asked for more explanation, just tell them what you have said here and I doubt any worthwhile employer will hold it against you. Recruitment people look for a pattern of achievement over several positions and years, not just the most recent job.

      Besides, many people who have been an absolute star in one organisation sometimes do not fit in with the next and leave during probation, only to go on to be an absolute star in another role. It is as much about “cultural fit” as it is about skills, knowledge and experience.

      Best wishes for your career.


      1. Hi David,

        Thank you very much for your support. It helped me a lot to see the situation from different angles, it helps me moving forward.

        Best regards

  74. Hi, I’m currently 4 months in on a 6 month probationary period and would like to resign. There was no mention of resignation notice in my contract and I’d like to leave ASAP. How much notice am I supposed to give?


    1. This is from the Fair Work Ombudsman website:

      “An award and agreement free employee doesn’t have to give notice to an employer before resigning. An employment contract may require an employee to give notice.”

      So, if you contract doesn’t specify a notice period and you aren’t covered by any other award or agreement, you don’t have to give any notice.


  75. Hi David,

    I’ve been working with my employer for 18 months having successfully passed my probation.

    A role came up in the company doing my exact role in a different state – I put my hand up for it because it’s closer to home and my father is having health issues.

    Work said they would transfer me but I would need to take a $25k pay cut as the market rate for my role in this state is lower….. therefore I had to sign a new contract for the new location and pay. However, they put in my contract that on probation for 3 months, despite having been employed with the company for a year and a half? I’m not on higher duties or a different role so I’m not sure whether this is okay….

    Can you advise if this is allowed?

    1. Sorry that should read a role came up in the SAME company doing the same role in a different state. So I’m a sales manager in NSW and my new role will be the same but in QLD.

    2. Hi Whitney,

      Hopefully you will get through the three months and not have to test it.

      You would need to speak to a lawyer for advice you can act on, but my understanding is that if you have signed a contract, you have agreed to the terms contained therein including the probation period. However, because you have been with the company for long enough, you can access the Unfair Dismissal provisions if you feel you have cause to do so. Then you would need a lawyer to advise whether or not the probation clause could be argued away in court.

      Sorry I can’t give you a more definitive reply.

      Best wishes,

  76. I had been in employment for a firm with six month probation period. After about 9 weeks, I was let go.

    They mentioned the main reason was I had not shown up to work on time many times. Granted, the the “official time” per the contract was 8.45am, I had come around 8.55 – 9.00 some times. They never really came and told me that this was an issue to them. The closest I had was a very informal chat with the manager who asked me if there was anything that was causing me to come late. I had a chronic sleep issue for which I was looking to undergo surgery and I mentioned the same to them. The manager simply said “Well, try and see if you can come earlier”. This chat happened about 5 weeks into my employment.

    During the termination meeting, where I met with the financial controller, they said they made the decision based on my punctuality and he thought I wasn’t interested in the new role, and the decision was not at all based on the quality of the work I did…he also said I was too techy (using Instant Messaging) and wasn’t engaging with too much face to face in the office. All of this sounded absolutely biased as that was only what he has “seen” and not a holistic view of what actually happened.

    I feel absolutely gutted right now, do you think there is anything that can be done?

    Thank you.

    1. Hi James,

      Sorry to hear of your plight. I doubt there is anything you can do because you haven’t been there long enough, or have sufficient cause, to access unfair dismissal and it doesn’t sound like there was any discrimination that you could challenge.

      I have been in your situation a couple of times in my career and it’s a bit like going through the five stages of grief – denial, anger, bargaining, depression and acceptance. The quicker you get to “acceptance” the better, because then you can start to move forward. My “acceptance” led me to see that the best revenge was getting an even better job and show those a-holes what they missed out on.

      Don’t be bitter, be better!

      Best wishes,


  77. I am working for a small business and currently in the fifth week of a 3 month probation period. For a number of reasons I do not wish to continue with employment and will resign. I believe this will be a mutual decision. My question is my contract states I can not work for a similar business within a certain distance for a period of 3 months after ceasing employment, does this still apply if I leave within a probation period?
    Thank you

    1. Hi Jo,

      You should check with a lawyer and not rely on my opinion. My opinion is that the contract will be binding but a lawyer might analyse the wording and find loophole or some flexibility.

      If you do go to work for a similar business, it will be up to your current employer to make an issue of it. If they think you have gained sufficient knowledge to be a threat to their business, then you can expect they will take some form of action against you. This will usually start with a letter threatening legal action. (This will probably be copied to your new employer, so you should let them know of this possibility before they hire you.) You might be able to negotiate a truce, e.g. you promise not to approach any of their customers for the period of restriction. If you can’t reach a compromise, or if you ignore the letter, they will have to make a decision whether it is worth pursuing through the courts. This will cost in time and money and they may decide not to go any further. At the other extreme, if they believe you came to work for them as a spy for your new employer, they will come at you with everything they’ve got.

      Hope that helps. Do check with a lawyer though.



  78. This information on this article is incorrect, an employee can make an unfair dismissal case to Fair Work Australia in the probationary period if they believe the decision was not performance based. The best way to combat this is to give continual updates of performance that is signed off by the employer\manager and the employee through out the probationary period.

    1. Hi Ben,

      Thanks for your comment.

      I think you may have misinterpreted something because we haven’t said that an employee can’t make an unfair dismissal claim during a probation period. What we have said is they can’t make an unfair dismissal claim if they haven’t reached the Minimum Employment Period – the probation period is irrelevant in this regard.

      Hope that clarifies the issue – do let us know if we have missed something.


  79. Hi,
    We have just advised a staff member that they have been successful in their 6 month probation and will be made permanent. A pay rise was attached to this. However during the discussion it was noted that there were quite a few sick days during this time. Not all days were paid as they did not have sufficient leave, some were unpaid. This was lightly touched on in the discussion and we were advised that it was just circumstances. The staff member requested an increase in pay as suggested at the time of their interview process. This increase was based on performance and was given verbally. 1 day later the staff member called in sick. We advise them that a medical certificate will need to be provided on their return.
    My question is this – Can we withdraw the permanency placement and salary increase if this was only done verbally with no formal letter issued?
    We understand that sick days can be legitimate however we feel this is a running pattern. We gave them the benefit of the doubt as their work was up to scratch – just their attendance was not. We need a staff member we can rely on – especially coming into our most busiest time. What is our obligation?

    1. I am not a lawyer but I have always worked on the premise that a contract, whether written or verbal, is binding on both parties. You may like to get a legal opinion on that, but if confirmed you have a permanent employee who needs to be performance-managed.

      The other consideration is that, if you have more than 15 employees, she/he has passed the Minimum Employment Period (MEP) and can access unfair dismissal provisions so extending the probation period would be redundant and therefore you need a performance management plan, which can have termination as an eventual consequence.

      If you have less than 15 employees the MEP is 12 months and they won’t be able to make an unfair dismissal claim.

      However, if the sick leave is due to a physical or mental disability, it may be considered an Adverse Action if not done properly. See What is adverse action? and Case examples

      Hope that is helpful.


  80. I was employed as a casual on a contract by my boss, regular hours exceeding 100 hrs a fortnight for 1 year and 3 months, i asked for full time and my employer obliged. On my new contract it states that my full time basis is subject to a 12 month probation, just wondering if this is legal?

    Kind regards
    Mr X

    1. I don’t think there is any law against it but I also don’t think it would have much sway if you have to take them to court. You have served the Minimum Employment Period and therefore have access to the unfair dismissal provisions, so just because they have said you are on probation you are still a permanent employee and entitled to fair process and treatment if they are unsatisfied with your performance or if your position becomes redundant.

  81. I was hired as a casual August last year, was doing full time hours etc. They took 5mths to have my fulltime contract ready (they were promising me a full time contract when i started) I signed a full time contract in late January this year (2019) when does my probationary period start. From initial employment.. so August last year?

    1. Hi Codie,

      People usually think of the probationary period as a time when you can get dismissed without any reason given. This is largely replaced by the Minimum Employment Period (MEP) which is six months for large employers and 12 months for small ones. A worker dismissed within the MEP cannot access the unfair dismissal provisions, so from that point of view, the probationary period is irrelevant.

      The fair Work Commision website has this advice for “Periods of service as a casual employee“:

      “Periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:

      • the casual employee was employed on a regular and systematic basis, and
      • the casual employee had a reasonable expectation of ongoing employment on a regular and systematic basis.”

      There is more information and examples on that web page and I recommend you take a look.

      Hope that helps.

  82. Hi David,

    I’m coming to an end for my probationary period of 6 months. On my employee contract it states that the notice period is 6 weeks, however it states that the employer can dismiss me without reasons and provide a 2 weeks notice. I looked up on the fairwork website and it said I only need to provide minimum of 1 week’s notice.

    What’s the correct notice period that I have to provide so I can leave this job as soon as possible? I was told by a HR personnel that I don’t have to fulfil my 6 weeks’ notice period but I’d just like to ensure I can backup my case.


    1. Hi Amber,

      The Fair Work minimum is really a fall-back for those people who don’t have a contract. I don’t think you could apply that in your case.

      You would need a lawyer to advise you on interpreting the terms of your contract. However, from what you have said, I suggest you try a two-week notice period on the strength of the advice from their HR personnel (it would be even stronger if you could get that in writing). Keep the dialogue open in case they have a problem with that, and consult a lawyer if you can’t reach a satisfactory result.

      Best wishes,

  83. Hi David,
    I am one week out from my 6 month probation period end and my employer has told me they wont be continuing my employment due to financial reasons. But they are still continuing to hire new staff with salaries for 3x what mine is worth. They didn’t even offer to cut my work days back to part-time or anything. I feel like this is not fair.
    Do I have any rights?

  84. Hi i`m currently on 6 months probation which is ending in next two weeks. I was hired on full time hour with sick, annual leave pay etc. I was hired to print and sales rep. I am a printer by trade (over 15 years) put have never sales rep before. They have giving me no training in the sales roll. I have got in a few quotes which they have quoted for me but never really got any work in besides two jobs. i have spent 75% of job on printing press and rest in sales. Now they are saying i havent got enough sales and have no work for me on printing press. What am i entitled to if i am let go before 6 month period?

    1. This if from the Fair Work Ombudsman:

      “Employee entitlements on probation

      While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.

      If hired on a full-time or part-time basis, an employee on probation is entitled to:

      • accrue and access their paid leave entitlements such as annual leave and sick leave.

      If an employee doesn’t pass their probation, they are still entitled to:

      • receive notice when employment ends
      • have their unused accumulated annual leave hours paid out.”

      You are entitled to one week’s notice or payment in lieu. If an Award or Enterprise Agreement is in force, you should check the termination clause to see if there is any other benefits.

      Good luck.

  85. My fixed term contract ended with the employer 2.5 months ago, and now the same employer is rehiring me for a similar but senior position, and this is the permanent role. Can the company still set out the probation period for me in this new contract? Thank you!

    1. The Fair Work Commission has this advice “What will break a period of continuous service?
      The following periods will break an employee’s continuous service with their employer and may result in a new period of employment for re-engaged employees:

      • resignation
      • dismissal, or
      • transfers of employment which do not meet the definition of a ‘transfer of employment’ in s.22(7) of the Fair Work Act.”

      It seems to me that the ending of a fixed-term contract is a more definitive break in employment than a dismissal or resignation. This suggests that you have virtually started a new job and therefore I would think that a probation period would be quite reasonable.

    2. I was given 3 months probation when I started work. I proved my employer that u was the right person for that position. I met my KPI within my 3 months probation. When my probation end, I informed my RH team and they said to do me a confirmation letter and increase my salary but they did not do it on time. It took them another 4 months to do my confirmation letter and increase my salary, I worked total of 7 months 4 months extra after my probation. Is it possible for me to claim the 4 months pay I worked after my probation?

      1. Theoretically, I would think you would be able to claim the back-pay but it would depend on what was said at the time and perhaps also what is in your employment contract.

        • If your employment contract says you will get a pay rise upon the successful completion of your probation period, then there is no doubt that you should get the back-pay.
        • If your contract doesn’t mention the pay rise, then you have to rely on the words your HR people used when you discussed it with them. If they said something like “Yes, you are due a pay rise for completing your probation. We’ll confirm that in a letter.” I think you could argue that the pay rise was in effect from that point and the letter was just a formality.

        I suggest you talk to your HR team and ask for your back-pay. If they don’t want to help, consult a lawyer and get some proper legal advice.

  86. Hello David,

    Here is what was written in my offer letter. I need some clarification on this.
    “” You will be on probation for one year from the date of your joining the organisation, after which your performance will be reviewed for confirmation. In case of termination/resignation of services, either party will be required to give three months notice in writing “”

    Does this mean that there should be notice of 3 months from or by employer or employee in probation period aswell ?

    1. I think it’s poorly written and probably doesn’t convey what they really mean. The way it is worded, it implies you get three months’ notice even during the probation period. If you get terminated at some stage, demand the three months and if they protest, you should consult a lawyer.



  87. Hi was wondering for a little advise. I started a full time job on the 2nd of this month we were provided little training , on Monday the on the 14th I went home ill as I have had a minor tummy bug then on the 15th I lasted half a day before having to go home sick I obtained a doc certificate as he advised me I should stay home tomorrow as it could effect other workers. Today being the 17th only being in my job for 8 days , I was terminated on the ground’s of I don’t dress coprate enough , my outfit was purch for me by a job agency, and I was seen walking around the office (were we don’t see the public ) with no shoes .. Intact my heel had broke on my shoes and I had to wait till lunch time to change them I walked to the toilet once and last my boss was told a refused to write a letter to a tenant which was untrue I wanted to put pet policy rather then unauthorized dog. I wanted it to sound a little human , she had the letter ready so regardless my response she was gonna terminate me. Sad thing is I was really crook and I tried to go but my body was just throbbing. I’d only done 9 working days , they never even gave me a chance

  88. Hi David,

    Thank you for this article. Very informative. I have a question about my current employment. I started on a particular role with an initial 6 month minimum term contract with the 6 months considered “probation”. I was advised from the beginning that this role was for 6 months as they want me to do another role after the 6 months which is different from my position that I signed into. I didn’t fully work this position at full capacity as towards the last 2 months of the 6 months, they started transitioning me into the new role, only doing my responsibilities on the contract every now and again (not on a full term basis). I received my new contract for my new role today with another minimum term employment (6 months) with the stipulation that the 6 months is also on probation.

    Seeing as it is a back-to-back probation and I’ve already been with the company for 9 months, if they terminate me within this new 6 month contract, can I claim unfair dismissal? Company has well over 100 employees.

    If you could please shed some light on this as it is very confusing, that would be much appreciated.

    1. Yes, you would have access to the unfair dismissal provisions. Remember though, to make a claim you will have to show that you were dismissed in a harsh, unjust or unreasonable manner.

      And, if your employment is ended while you’re on probation, you still have to get, or be paid out, notice and leave entitlements based on your length of service.

      Hope that is helpful.


  89. hi good day
    I have a question regarding my situation here in my current employer, i was once a probationer then the HR terminated my probationary period that will be ending this coming january 18, 2019 which will be my 4th month working here in the company (they already evaluated me after 90 days). then i signed a 5 month contract from the very beginning of my employment here which will not be served fully, does the employer should pay me the remaining 1 month of my contract? or no need at all? what should i get after the probationary period?

    1. The wording of your contract will mostly determine your entitlements. If it says explicitly that you are contracted for five months, then theoretically you should be paid for five months. However, other clauses, particularly the termination clause, may override the contract period.

      If the contract doesn’t clarify your situation, the next consideration is whether you are employed as a casual or permanent employee. If an employee doesn’t pass their probation, they are still entitled to receive notice when employment ends and have their unused accumulated annual leave hours paid out. Casuals are employed day-to-day, can be terminated at any time, and will not have accumulated annual leave hours. A permanent employee with four months service is entitled to one week’s notice and will have accrued an amount of annual leave. The Fair Work Ombudsman has a leave calculator you can use to determine your entitlements.

      You should get legal advice on your contract if you have any doubts.

      I hope that is helpful.

  90. Hi,
    Myself and two coworkers have gone through a training period on a training rate and now are fully qualified. However, our employer is withholding our full rate of pay until our probation period is over and then has told us we will be back-paid.
    Is this something they can do?

    1. On the face of it, I wouldn’t think that is legal or sensible. If they say they are going to back pay you, they are admitting that they are currently under-paying you, which is illegal. Also, it is really counterproductive to annoy employees by withholding entitlements just for the sake of a few months interest on the money. Now there might be something in your employment contract that allows them to do this but I doubt it.
      Of course, I am not a lawyer and you shouldn’t rely on my opinion. Seek legal advice before taking action.

  91. Great article! We have an employee who has been working with us for 2 months. Unfortunately, we are note sure we have enough business to sustain the role. Can we terminate his employment under the probationary clause in his contract with this reasoning, that the role isn’t working for the the business?

    Thank you!

    1. I have known some tough employers who would say “He has less than six months’ service and therefore cannot access the Unfair Dismissal Provisions so just terminate him.” I do not advocate that because there are standards and guidelines that help make the process fair and reasonable, and if you follow those everyone will feel better and you will be less likely to have any trouble.

      The Fair Work Ombudsman says “you are required to provide written notice of termination if you are terminating an employee’s employment during the probationary period…
      …When drafting the letter, you should:

      • review the letter of engagement to check the length of the probation period, and
      • check whether the relevant industrial instrument (e.g. an award or an enterprise agreement) contains any compulsory rules about probation.

      Under the NES, you need to give an employee written notice to end his or her employment. The written notice should specify:

      • the period of notice given (or payment in lieu of notice), and
      • the date the employment will end.

      Remember to also check if the letter of engagement or a relevant industrial instrument (e.g. an award or an enterprise agreement) contains a longer notice period. If they do, the longer notice period will apply.”

      See: Letter of an unsuccessful probation period template

  92. we have employee who started on the 17th of September 2018. he has a probation period of 3 months and a notice of two weeks. unfortunately he doesn’t fit and is not able to do his job as we wish.
    his probation would end on the 17th of january 2019. i was wondering if we will need to terminate him on the 17th of january with two weeks notice or already need to terminate him on the 2nd of january

    1. Usually a probation clause in an employment contract says something like “During the probation period you or the employer may end your employment by providing notice”, which would mean you could terminate, with notice, at any time, i.e. immediately. It would be very unlikely that your employment agreement would guarantee three months of employment, but if by some weird accident it does, then giving two weeks notice on 2/1 would cover that.

  93. We have an employee coming up to her 6 month probation period, sadly she is not capable of performing all of her duties. She has admitted she doesn’t understand a particular part of her job, even after several long teaching sessions. This task has been given to someone else who doesn’t really have the time to do it. Unfortunately she has not had a structured performance process, we generally review every 6 months. She has not completed her Performance Review form despite constant requests over the last 6 weeks. We are worried that she will use a General Protection Claim, what do we have to do to avoid this? Our intention is to give her a weeks’ pay in lieu of notice, interview her listing the things she is not doing and then ask her to leave. What do you think?

    1. From the information provided it doesn’t sound like you have anything to worry about, but you mention the possibility of a General Protection Claim so I am assuming there is something about this person that may be contentious. I can give my personal opinion in a general context but if you have any concerns you should seek legal advice and not rely on anything here.

      In general you don’t necessarily have to give a reason during the probation period, but it is good practice to have documentation that supports the legitimacy of the dismissal should the need arise. The more evidence you have the better. Documentation could be emails or diary notes made by the supervisor at the time of transferring those tasks to another person, and each time she was requested to complete her performance review form, plus details any other counselling and training that has been provided.

      Your suggestion of interviewing her and listing the shortcomings is appropriate. Handled well, you could even get a resignation before you finish.

      Hope that helps. Best wishes for a peaceful resolution.


  94. Hi. I wondering is sick leave is included in the probation period? Or does it extend the probation period based on the days sick leave taken?

    1. It depends if it’s paid leave or not. Paid leave such as Personal/Carers Leave, Annual Leave and Workers Comp, are generally regarded as periods of service for determining employee entitlements. Unpaid leave is usually not.

      The Real Estate Employers’ Federation (REEF) has a good article “Counting down the days: Employee absence during a probation period” which says in part:

      “A common question from members is whether an employee’s absence from work extends their probation period or Minimum Employment Period.

      The answer depends on the reason for the employee’s absence.

      Where the employee is on a period of unpaid leave, the period of leave will not count as service with the employer. For example, REEF was recently involved in a case where an employee was terminated by the employer exactly six months after the employment commenced. During the six month period, the employee had taken two days of unpaid personal/carer’s leave. The agency had 19 employees and therefore the applicable Minimum Employment Period was six months. Because of the two days’ absence, the employee had served less than six months and the Minimum Employment Period had not been met. Therefore, the employee was unable to bring an unfair dismissal claim against the employer.

      An unpaid period of absence must be distinguished from paid leave (for example, personal/carer’s leave, annual leave etc), which will count as service for the purposes of the Minimum Employment Period. It’s also been determined in a case before the Fair Work Commission that an employee’s absence on workers’ compensation is to be counted as service.”

  95. I have been employed from March 19th 2018 and my contract has a 6 months probationary period, of which, once completed I either have to give my employer 3 months notice, or the Company has to give me 3 months notice to terminate my employment. Anyway on the 7th September I had my 6 month probation review, where my Manager decided to extend this by a further 4 months – due to not meeting performance expectations, of which, was the first I was made aware of, as I never had any previous reviews, nor any clear objectives set to meet – only targets, of which, I had achieved and brought my area back out of deficit and had been appraised for this and on other good work that I had did. Two weeks after the 7th September – so Tuesday 25th September, I have now been made redundant and only given a months notice. I stipulated that I have completed my 6 months probation period has per my contract and that I am entitled to 3 months notice and have been told that due to my extension, I am still in my probationary period and therefore, it will be a month. This cant not be legal, nor right, as they have purposely extended to try and get out of paying me 3 months notice?? Plus, there is no clause in my contract that they can/will extend my probation period – its just stipulates that after my 6 month probationary period that to terminate my employment that 3 months has to be given either side. The Company reserves the right to pay you salary in lieu of notice. Nothing in these terms and conditions of employment shall prevent the Company from Terminating your employment without notice, or salary in lieu of notice in appropriate circumstances.

    I smell a rat here – Is this something that I can challenge?

    1. Hi Ceri,

      The circumstances you describe do appear to indicate that you are entitled to the three months. You will need a lawyer to look over your contract and review the situation with the extended probation to be sure. In the first instance you could go to your employer and say that you believe you are entitled to the three months and if necessary you will engage a lawyer to pursue it. They might concede at that point and save the legal costs. If they don’t concede, consult a lawyer and go from there.

      Good luck.


  96. Great article Mahua, and what a fantastic forum for some good queries, and guidance.
    David, I have an interesting contract which refers to a 3 month notice period, but then in a clause below it talks about employer discretion to reduce the notice period (but no reference to payment reduction) upon employee giving notice. Seems a little sneaky and was wondering what the possibilities were if I resigned – could the company just “reduce”the three months to nothing – especially noting when I negotiated the contract the “intent” was to ensure a reasonable payout on parting of ways, given the time it takes to re-employ in my field.


    Relevent section below …

    2. Termination
    2.1 On completion of your probation period, either party may terminate the Contract by giving the other party three (3) months written notice of their intention to do so, or making payment in lieu of such notice. Nothing in these terms and conditions of employment prevents the Company from terminating your employment without notice in the event of serious misconduct. Where you are dismissed for serious misconduct, you are only entitled to payment for time worked up until the dismissal.
    2.2 In case termination being tendered by the Employee, the Company might waive the notice period at its discretion.

    1. Hi Steve,

      Yes, that is a very interesting clause to add to your contract. I am only guessing, but maybe the intention was to have the flexibility to get you off site quickly if you were moving to a competitor.

      I am not a lawyer but I think the two key phrases are

      • “… or making payment in lieu of such notice” and
      • “…might waive the notice period”.

      The first phrase seems to identify the “notice period” and the “payment” as two separate conditions, and the second only mentions the “notice period”. So, if they choose to waive the notice period, they then still have to make payment in lieu.

      That’s only my personal opinion and you should get legal advice before you take any action.

      Hope that helps.



  97. Good day!

    A big software company hired me to work in Canberra. I came from the Philippines last May 25, 2018 and they arranged and paid for me 457 visa and relocation expenses. Im very happy for this great opportunity.

    However, it was recently cut short, when after 1 and half months they told me that they are terminating me. This left me with nothing as I resigned from my work in Manila, sold some of my properties and even lend some money at the bank in exchange of good offers and promises. Also the hardship and time that I alloted to even getting OEC for direct hires gave me a little stressed because they stopped giving it and luckily after my appeal they gave me a chance.

    The company just gave me 2 weeks salary and tickets to get back home but what are I getting back to? I have no jobs to support my families back home and even myself.

    I believe that I am unfairly dismissed as I did my best at work. I admit that I’m still learning as far as the work and Australian culture is concerned but I work hard and am willing to learn. But they just kicked me out without any consideration and concern to me and my family.

    Can you suggest anything that I could do? Can I file any legal action? My last day in the company was July 27 and I have 3 months left to either leave the country or apply for another visa. But unfortunately, I wasnt able to save that much money to support myself due of this incidence.

    I dont want to go home without anything in my pocket or I dont want to lose this chance and still want to continue working here in Australia.

    Hope for your quick response.

    1. Hi Zon,

      Sorry to hear of your predicament.

      The company will have its reasons for termination and, even if you think they are unreasonable, you do not have access to unfair dismissal laws because you have not been employed long enough. However, there may be something in your contract of employment regarding minimum length of engagement or period of notice on termination. I suggest you read through it carefully to ensure you are getting all of your entitlements.

      Other than that, I think you have to accept the situation and try to find another job. Good luck with you search.

      Best wishes,


  98. Good day. My basic salary as an operation Manager is being reduced to 3750 after probation period when I originally earned 7500. Is this legal?

    1. The Australian Industry Group has a page of advice for employers on this matter under the title “Reducing an employee’s pay”

      They answer the question “What mechanisms are in place to reduce remuneration for a full time employee?” with “Generally none without the employee’s consent. It is also important to consider the employee’s contractual entitlements and rights under awards and enterprise agreements.”

      I recommend you read what they say as there are a couple of possibilities that may apply in your situation – see “Reducing an employee’s pay”



  99. Hi David, my husband got his full time contract 3 weeks ago before we went for holiday. The contract said started at 2nd July, but we went for holiday and came back on the 6th July. He told them about it 7 months ago about going for holiday while he was still on casual. So he took unpaid holiday. Which they agreed with it and knew that he is ready to get back to work on the 7th July.
    Now that he is back and ready to get back to work, they told him that there are no shifts for him and asked him to stay for unpaid leave until Monday.
    The contract also stated his shift from Wednesday to Sunday. Is it legal for them to do that? Not giving him a shifts for 2 days and asked him to take another unpaid leave?
    He is still on 3 months probation period. Thanks.

    1. Hi Cynthia,

      As always I must point out that I am not a lawyer and this is only my personal opinion.

      Information on the Fair Work Ombudsman’s website says:

      Stand down
      An employer can send employees home if there is no useful work for them to do because of:

      • equipment breakdown
      • natural disaster (including floods, bushfires, tropical cyclones)
      • industrial action.

      This is known as a stand down. This can only happen if the reason for the stand down was out of the employer’s control.

      Employees can’t be stood down just because there is not enough work.”

      That last sentence would indicate that the employer has acted incorrectly.

  100. During probation period when employees performance is not up to the expectation can we terminate without notice period if the clause are mentioned in the contract of employment.

    1. It is probably timely for me to re-state that I am not a lawyer and this is not legal advice and should not be relied upon as such. It is just my personal opinion and you should consult a lawyer before taking action. Also, my experience has only been with Australian situations and the laws of other countries do differ greatly.

      Generally a contract is an agreement between two or more parties on how they will interact and conduct themselves. Therefore you could argue that you can do what you want to do if the contract says the employee can be dismissed without notice, and for any reason, during the probation period.

      However, there is usually an expectation of fairness in dismissal situations plus it may be that the employee felt coerced into accepting the contract terms in order to get the job in the first place. I recommend you seek legal advice on the validity of the contract and how the law in your region deals with these situations.

      Sorry I can’t be more helpful.

      Bet wishes,


  101. Hi David, in regards to a new employment, if I signed a contract being Fulltime and then decide to change to Part-time after a month of starting, is that allowed or is that going to mean I will no longer be given the position and the company not wanting me anymore and could be a grounds for termination of contract?

    1. Hi Clariz,

      Your employee can consider your request to go part-time but is under no obligation to grant it. They may decide that part-time does not suit their business and you will either have to stay at full-time or leave. If you cannot stay at full-time, they could terminate your employment and you would not be able to challenge that. However, they may decide that it is okay to go part-time and you have nothing to worry about. Best to ask them and then decide what to do.

      Good luck,

  102. Hi David,
    i have bee going through my paperwork in regards to my own probation, and there seems to be a difference in dates in my paperwork.

    I signed a form to increase my salary and role title as of 17th February(it states effective as of 17th February) , however my contract that I was sent says that it was effective as of 22nd February.

    I would like to resign before my probation has ended so that I can give less notice, which date is the correct date which I should be using?

    1. Hi Allison,

      The 17th February was a Saturday and the 22nd a Thursday – did they adjust the timing to fit in with a pay period perhaps?

      Either way I would take the date that your salary increased as the effective date for starting your new role. If they say the role started earlier than that, you would be entitled to some backpay.

      Hope that helps.



  103. Hi, can my 6 mth probation period be extended by 3 mths because I have had carers leave (paid), im meeting all kpi’s however my quality is sitting at 70% and they claim my carers leave (all supported by medical certificates for my kids) and my absence from work has contributed to my poorer quality %? I blame it on lack of support and training…Is this not discrimination?

    1. Hi Rebecca,

      There are too many grey areas for me to hazard an opinion on your situation. You will need a lawyer to look over the employment contract and also analyse anything that has been said to see if carer’s leave is really a factor before you could even consider discrimination.

      It is probably more likely that, with your quality at only 70%, your employer sees you as a borderline case for permanency but rather than terminate you outright, they are offering you a further three months to get up to scratch.

      Don’t get too hung up on the term “probation”. It might make it a little easier for the employer to terminate you, but if your quality continues to be 70%, “permanency” won’t save you. Take this opportunity to discuss support and training with your employer from the perspective that you want to improve and it is in both your interests to make you successful.

      Best wishes,


  104. Hi David, I am 2 days from my probation date of 6 months. I am employed in a company of excess of 500 employees. My work load far exceeds the position that I was employed for, I am doing the work load of a senior how ever I was employed as an assistant, I am only still being paid for the position that is on my contact and I have had absolutely no training in my position, no warnings and no feedback at all.
    I have three questions: 1. As my probation date falls on the weekend, if worse case I am terminated on Monday do I have anything to fall back on?
    2. Because it falls on the weekend does that automatically mean that the period then would finish on the next business day?
    3. And When would be the best time to ask for a position review?

    Thanks for your time.

    1. Hi Sheena,

      The intent of a probation period is to set a time in which a new recruit has an opportunity to learn the job and prove that they can be productive in the role. This imparts obligations for both parties – diligent application by the recruit and provision of training, resources and feedback from the employer. Employers often short-change recruits, as in your case.

      The significance of the Minimum Employment Period (MEP) is that an employee cannot access the Unfair Dismissal provisions unless they have been employed for at least six months in larger organisations, or twelve months in smaller ones with fewer than 15 employees. This is quite independent of the probation period.

      Therefore if they sack you on Monday, you have passed the six month MEP and can access the Unfair Dismissal provisions. Be aware that employees have to apply to the Fair Work Commission within 21 days of the dismissal taking effect. The 21 day period starts the day after the dismissal. If you think you have been unfairly dismissed you need to contact the Commission as soon as possible.

      Even if they sacked you today, a few days under the MEP, I would still talk to the Commission as they would probably be sympathetic in a case where the employer hasn’t provided any training or feedback.

      If you are not terminated, you could use the completion of your probation period as the reason for requesting a Position/Performance Review. Be prepared for the possibility of some negative feedback once they are finally forced to review your performance. The best defence is to say “Okay I wasn’t aware of that, nobody has said anything. What do I need to do to improve in that area?” Equally be prepared to detail the areas where you excel and where you are doing higher duties than your pay level.

      Best wishes,


  105. Hello David

    Thank you for your advice in this thread, it is very helpful.

    I realise from your disclaimer you are not a lawyer and cannot offer legal advice, which I am not seeking. Could you perhaps give me your thoughts on my current situation please?

    I moved interstate for a job that is covered by an Award. The role is not what was promised so I am seeking alternative employment and wish to give notice. There is three weeks to go before the contractual six month probation period ends and my employment contract states that the employer (large global company) ‘must provide one weeks’ written notice to terminate within the probationary period’, but is silent on the notice required by me, the employee. However, under the termination clause, it states that both parties are required to ‘provide one months’ written notice’ but states nothing about employee initiated resignation being inside or outside the probation period.

    I am familiar with the FWA and know that it sets out one weeks’ notice; does the employment contract clause under ‘termination’ being four weeks’ notice override the Act’s provision of one week? I find it perhaps unreasonable that the employer can provide one week and I have to provide four. I signed it but should have picked up on that issue.

    I appreciate your opinion on this issue and thank you in advance.


    1. Hi PC,

      It would appear from your description that you have committed to one month’s notice of termination. The FWA only sets minimum standards and as this contract is more generous than the minimum it will take precedence. However, the company may not choose to enforce that.

      If you definitely do not want to serve out the one month:

      • You could start with a one week’s notice and see if they object.
      • If they do object, you could then argue that the intent of the contract was that, during probation, one week’s notice is all that’s required. It is poorly worded and could in fact be interpreted to mean that only the employer has to give notice, and not the employee. In which case you are being generous in providing one week’s notice.
      • If you stick to your one week and leave, I am fairly sure they still have to pay you for time worked, so you have lost nothing in that regard. I wouldn’t expect any great references though.
      • As a fall-back, you might reach a compromise at perhaps two weeks.

      Companies only really press for maximum termination periods if you are going to a competitor, or if you have an unfinished project that they need you to complete.

      Hope that helps,


      1. Hello David

        Yes, helpful, thank you.

        I always do the ‘right’ thing in my jobs and by employers, never leaving them in a difficult position. I will come as close to four weeks as I can whilst facilitating new employment, but I do have some options to counter any objections should it be required. Your second point was interesting; I didn’t think of it from that angle. I have to balance having the leave and salary entitlements paid to me and not withheld, but being available to start another job interstate relatively quickly.

        Thank you David, I do appreciate your time and opinion.


        1. Hi there,

          I wonder if you could give me some advice. I passed my 3 month probation period and nothing negative was mentioned to me by my employer at our catch ups and as I always asked if I could improve they didn’t say much but that everything was fine. They also never mentioned extending the probation period. A month ago my boss started picking on me and bullying me in front of other staff. I got my first warning two weeks ago informing me that I was still on probation and that it had now been extended to 2 weeks and if my work did not improve I would be let go.

          Come Monday after the discussion I was told not to look for work just yet by a manager and to relax. Next thing I know my role was advertised on LinkedIn much to my surprise and the managers. His reply was my boss is a law unto himself.

          Today he publicly embarrassed me again because of text sizing in our newsletter and insulted my mental ability by basically saying I can’t listen and have no basic understanding of anything. Other employees have left in droves around 18 in total just the last year.

          What do I do if I get fired on Friday ? Do I resign before they fire me. Legally what are my rights ?

          1. Hi Isabella,

            I can’t actually give “advice” because I am not a lawyer and you shouldn’t act on my “personal opinions” without seeking legal advice.

            Your boss sounds like an amateur who uses bullying tactics to cover his own incompetence. It appears from your comments that you could take action at the Fair Work Commission (FWC) to stop the bullying. See FWC Application

            If you haven’t reached the Minimum Employment Period (MEP) of 6 months (12 months for small employers), then you do not have access to the unfair dismissal provisions but might be able to claim the dismissal is an “Adverse Action” coming as a consequence of exercising your Workplace Right to to take action against bullying. See Protections at work.

            However, even if that saves your job in the short term, you would still be working for a lousy employer.

            If you resign, your award, employment contract, enterprise agreement or other registered agreement will set out how much notice (if any) you have to give.

            If they dismiss you, you are entitled to a notice period of at least one week, maybe more depending on the terms of your employment. See Notice & final pay

            In either case, your employer can let you work out the notice period, or tell you to leave early and pay you in lieu of notice instead. If your employer decides to tell you to leave early and pay you in lieu of notice, they need to pay the full notice period that applies for dismissing an employee. Any time you have already worked during the resignation notice period doesn’t count.

            My “personal opinion” then is to sit tight and see what happens. Keep your job as long as you can but look for another job in the meantime.

            Hope that is helpful.


  106. We have a staff member still in probation period of less then 3 months who signed a contract stating they would work at least 32 hours (4 days ) a week employment. Since signing this contract they have not done a single 4 day week and is lucky to do 3 days a week due to illness but we have not cited a doctors certificate. We are a small business of less then 4 employees and we would like to offer before the probation period ends, the staff member a new contract of two days a week and employee another person for the other 2 days a week so we can cover this staff member with their unreliability. The role they are employed to do involves a lot of lifting and packing of shelves/stock which was outlined in the job description/interview but now due to their illness they apear not capable of doing the duties for the role and we have limited ‘light duty’ roles to offer them to fulfill their day. There have been performance issues as well but I have not brought these up with them yet because I do not want to be hit with an unfair dismissal case if they think we are only bring these up now because of her continual absents. Can we offer them a new contract to replace the old one within the probationary period and if they don’t accept this new contract, what stance do we have to dismiss them entirely?.

    1. Hi Lee,

      Why would you want to offer an unreliable employee a contract for two days per week? If they are unreliable you will be lucky to see them even one day a week. Small businesses cannot afford to carry deadweight and she is 20-25% of your workforce. Cut your losses, sack her and get someone reliable. There is no need to give a reason during probation, but you might want to mention the performance issues just to clearly show it is not due to any medical issues. Just say its not working out and let her go.

      Best wishes,


      1. Hi David,
        That is exactly what I want to do but have read that if they believe they are being sacked because of their illness and in turn unreliability, they still have a clause to claim some form of unfair dismissal even if it’s under 12 months employment.

        1. Okay, there are two aspects to this.

          • For a small business, employees cannot access the Unfair Dismissal provisions unless they have been employed 12 months or more. So she cannot bring an Unfair Dismissal claim against you.
          • However, there are also General Protections covering dismissals and one of those is you must not dismiss someone because they have been temporarily absent from work because of illness or injury. There is no specified period of employment for this so she could access this if she believes you sacked her because she was ill.

          If there is a likelihood at this stage that the dismissal could be linked to her absences, in the short term, you should instigate weekly performance reviews (with no mention of illness) and document them so there can be no doubt that it is all about performance. Her performance may even improve to the point where you can keep her but, if it doesn’t, give her a warning, two if you are feeling generous, then sack her.

          I am not a lawyer and this is not legal advice. You should consult a lawyer and not act solely on my opinions.

  107. Hi David,

    I just would like to know your thoughts in regards the below:

    My probation period passed on the 2 of January 2018. Today I just was call for a meeting with my reporting and line managers where they gave me a letter mentioned that they had extended the probation period for 2 months more. I told them that I was pregnant on the end on November. Not sure wether it is the reason but I couldn’t lie knowing that I needed assistance to go for Dr appointments. I haven’t take many sicks leaves because I try to make my appointments early in the morning- and fortunate haven’t have many mornings sickness . Now I have 24 weeks! No sure wether to sign the letter or just go and speak to HR about the case- . It is a big company with more than 500 employees. Your thoughts how should I handle this situation would be highly appreciated. Basically the reasons they put in the letter for extending the probation period are the below:

    – Actively listening to peers and talking adequate notes whilst training.
    – Prioritising workload
    – Seeking assistance from direct peers rather than former colleagues.

    Kind regards,


    1. Hi Rachel,

      The fact that you are still employed is a positive sign 🙂

      However if you are terminated at some point, there are a couple of things to consider. It is not clear from your text how long your initial probation period was and whether the extension will take you over six months of employment.

      • If you are over six months you have access to the unfair dismissal provisions and they will need to provide a fair process of counselling, including warnings and opportunities for you to improve, before they can dismiss you. If they don’t, you could take action for reinstatement or compensation.
      • If you are under the six months, you don’t have access to unfair dismissal but you might have a case for discrimination if you can show evidence that your pregnancy was the reason for termination. That can be hard to prove that it was the reason for termination, but the greater onus is on the employer to prove that it was not.

      I suggest you talk to HR to clarify what you need to do and confirm their expectations before signing the letter. But be prepared to sign at that meeting once you have had your chat. If you refuse to sign it might be taken as an act of defiance, and that is usually not a desirable trait in an employee.

      In my experience, the vast majority of concerns and worries disappear after an open and frank discussion.

      Best wishes for your career and parenthood.


      1. Thank you David for you prompt feedback😀. My 6 Months probation period as per of my full time contract ended on the 2 of January 2018. I did start with the company on the second of July 2017!!! They didn’t gave me any warnings at all and I thought everything was alright till yesterday they come up with that letter of 2 months probation period extension- I was on chock and still I am because I wasn’t expecting it- as I told them I just thought I was performing well and meeting expectations. I believe all sudden is related to the pregnancy because is strange all those excuses that just come up on the table. Perhaps they don’t want to guarantee my job back after maternity leave/ or made me redundant before during the next 2 months extension!!! . It is the only reason come up in my mind!!! So under those circumstances do you think is better to sign that letter without even go to HR? I was planning to have the job back after maternity leave so I really want things turned in a good way but now I am very concerned/ confused about how to manage this sudden stressful situation.

        Many thanks 🙅🏻.


        1. Hi Rachel,

          Let’s say for the sake of the discussion that your employer does want to terminate you because you are pregnant.

          Since you are over the six month employment threshold, an extended probationary period is really of no consequence. It may just be a psychological ploy to condition you into believing that there is a performance issue and nothing to do with your pregnancy.

          Your employer knows they cannot terminate you for pregnancy, so will avoid any implication that your pregnancy is an issue. If they do intend to terminate you, it will become evident very quickly because they will need to document “performance” reviews, counselling sessions, warnings and written notices in order to avoid unfair dismissal.

          If they are smart they will make it all about performance and provide a well-documented, fair process and it will be almost impossible to fight. If they slip up, perhaps make an unguarded reference to pregnancy or skip a couple of steps in the fair process, then you have ammunition to launch either an Unfair Dismissal or Unlawful Termination claim.

          I still suggest you talk to HR along the lines of wanting to be a great employee and finding out what they expect.

          Good luck,


  108. Hi David
    A friend of mine was terminated during her probationary period for poor performance/not meeting expectations. She did get a couple of messages along these lines during her probationary period, but nothing formal. She was extremely upset and discussed the financial concerns she was having. The employer paid her an additional weeks notice. Then they offered her a job at the same company, starting the next day on a lower salary with another 6 month probation period in the contract (She has gone form $180K for an exec role to $100K + commissions in a sales role as they believe she would be more suitable for the sales role ). Is this allowed? Can she be terminated during the probationary period again? Thanks in advance.

    Kind regards,

    1. Hi Mona,

      Just in case you missed it in my other postings, I usually point out that I am not a lawyer and this is just my personal opinion and not legal advice.

      I believe the contract wording is the critical element in these situations. If it clearly states that, because this is a different role, a new probation period starts with commencement in the new role, and your friend understood, agreed and signed that contract, then it would be a valid probation period.

      However, that doesn’t mean she can be summarily dismissed. Her employment started from the first role so overall she may well have exceeded the Minimum Employment Period (six months for large employers, 12 months for small). This would allow her access to the unfair dismissal provisions if she felt she was not treated fairly.

      Hope that is helpful. If things go wrong and she is not satisfied, consult a lawyer.


  109. We are an employer with less than 15 employees. We employed someone in a sales /service role on a twelve month probationary period and two and a half months have passed and we believe this person is unsuitable due to her rudeness to customers on the telephone, she speaks over them, is abrupt, tells them incorrect information and has lost sales . Our calls are recorded for marketing and training purposes. She has been counseled regarding the loss of a large sale made by our field salesman but since this her responses have sent a major commercial client elsewhere and a VIP client who is related to our major advertiser treated rudely and where an inappropriate note was made on this job. We have all these recordings and have decided to terminate her EXCEPT she is absent most recently for 3 days before and one day after a weekend so far with a family issue ( not domestic violence). In this two and a half months she has taken 5 days absence due to illness and with the latest 3 day so far – 8 in total. All annual leave and Personal Carers leave has been exhausted and some days were taken as LWOP. This is an issue but this has not been addressed as the fundamental part of the job is not satisfactory. We have not yet terminated her as she is not back at work from the family issue. What should we do wait until she arrives back at work and then let her go for the unsatisfactory handling of customers for which we have ample examples. What if she doesn’t come back to work? We are not paying her for her current absence as she has used all available leave but should we ask for some evidence for her leave?

    1. Sounds like you have more than enough evidence to terminate her for lack of performance, so keep it clean and don’t mention her absences. She doesn’t have access to the unfair dismissal provisions, but she may conjure up something discriminatory about being sacked for her absences. I wouldn’t elaborate too much, just say her performance has not been satisfactory and you are letting her go.

      No need to wait until she returns, you have a business to run and can’t delay these things. However, there have been some employers castigated for sacking people via SMS, so you might consider a phone call to be more reasonable, followed by a confirmation letter.

      Hope that helps.



    2. Thanks David – she ended up resigning. However her replacement is now causing us dramas. This young girl is within the probationary period and has a medical condition requiring therapeutic blood donation which we have accommodated. She has now told us she is pregnant and has had time off for scans and feeling ill and has now exhausted her sick leave entitlement.
      On Monday 16 April she did not turn up for work 8.30 am start and we heard nothing from her until approx 9.30 am to say she had to take her partner to an 8 am appointment for a broken ankle, had dropped him off and was on her way. She did not arrive and in spite of numerous calls and messages left failed to contact us until 5.56 am on Tues morning 17 April to say via text, she had had to go to the hospital due to a placenta issue and was still there and was sorry for not updating us and would call later to update us. I sent an email and text requesting medical evidence for her taking her partner to the doctor and also for her own medical issue from the treating doctor and hospital.I asked her to advise us when she was returning to work. We have heard nothing.
      However we have found her Facebook and Instagram accounts open on a computer – not her own – that she was using – a clear breach of company policy . We have discovered through these accounts that her partner has no ankle injury and have seen photographs of her with her partner attending a birthday party in the city last night 16th whilst she was supposed to have been in hospital.
      Please tell me the best way to terminate her. She is likely just to rock up at work tomorrow as if nothing happened. She we just advise she is not suitable for the job. The pregnancy factor is worrying me however we would not terminate her for legal absences but a fraudulent one. Helpppppppp

      1. It is amazing how disrespectful some employees can be. There seems to be a total lack of understanding about what an employment relationship is all about.

        Personally, I would terminate her for not showing up for work and not producing the medical evidence you requested. She can’t claim unfair dismissal, so the only avenue she could try is unlawful dismissal on medical grounds. If she does try that, you have documented evidence on how you have accommodated her needs and how you tried to verify her latest “medical” incident(s) to no avail, so I would think you have a very strong defence. I have been known to be a bit impulsive at times, but in this case I’d be comfortable to just sack her and deal with any consequences if they come up.

        As always I must say I am not a lawyer, this is just my opinion, and you should consult one to get advice.

        Hope that helps.

        Best wishes,


  110. I’ve been taken on in a senior role at a company and am 3 months in. I have had absolutely no on-boarding or help and have been thrown in the deep end writing very complicated reports for a large company. I feel like I have been given unwinnable proposals to write at ridiculous prices to clients. I have been told that it is likely that I am not a good fit for with the company and unlikely to pass probation. I have been working very long hours to cope with the work I have been given and I have not taken any sick leave. I have completed all the work requested, am cheerful and never late. I feel like I am being discriminated against and that I have simply not been given a fair go. I am well over 55 years old and this job is crucial to me at this stage of my life. Do I have any recourse if I am dismissed within the probationary period?

    1. If you are dismissed, the only possible recourse you might have is if you can show evidence of discrimination. However, it would be hard to argue that age is a factor since they knew your age when they hired you. I think your best chance is to talk to your employer about why they think you won’t pass probation and what they expect from the role.

      Best wishes,


      1. Thanks David. I tried to set up a meeting with my manager to discuss their expectations and what they would like me to do. I never got the meeting before he went on leave. All feedback was verbal and nothing was documented. I wanted to set up a performance improvement plan, but never got the opportunity. I continued working tirelessly when he was away and tried to improve my proposals, with no help and very little feedback. He came back from leave and said that he had ‘heard’ from others that my writing style had not improved. I was fired and they said it was because I did not have the skills or experience for the role. The bottom line is that the job ended up being quite different to what they had advertised it to be. I have also found out that they never spoke to my referees before hiring me. Surely this is a poor recruitment process? I feel like I have been treated very unfairly. Is there anything I can do? Or is this just a lost cause for me because it is within the probationary period?

        1. Hi Jaxon,

          Sounds like they do have a poor recruitment process, and a poor induction and support process as well. You should take some solace in knowing that they are probably not a good company to work for.

          There doesn’t seem to be any overt discrimination so there is not much you can do. Stay positive and keep trying. I hope a better opportunity is just around the corner for you.

          Best wishes,


  111. I’ve been with my company nearly 8 months I’ve gone too hand in my one weeks notice and the company have told me I need too give one months notice the only reason I have gave one weeks notice is, in my contract it states that I have too have a letter written too my self comfirming my probation period has been passed, I have no letter from company stating this where do I stand with this can I leave after one weeks notice as I’ve not had letter ??

    1. Hi Wayne,

      You will need to check the award, employment contract, enterprise agreement or other registered agreement that covers your employment. These will usually specify how much notice you need to give and whether the employer can withhold moneys if the notice period is cut short. You could put it back on your employer to show where it says one month’s notice. Employers sometimes link the notice period to the pay period, so if you’re paid monthly they expect you to give one month’s notice.

      You could try to argue the technicality that you didn’t receive written confirmation that you passed your probation, but in reality you wouldn’t still be there if you didn’t, so it is a very thin argument. In the absence of anything in writing you would be covered by the National Employment Standards (NES) which is one week in your first year of service.

      Hope that helps.


  112. my employer said in a performance review at 2 months that I was on a probation period of 6 months, yet I see no evidence of that in the contract. He assured me that I was, but I can not see it anywhere

    With that in mind now they are saying they want a performance increase and me to end my probation period first. I think they are saying that so they can end my employment at 6 months, without having put me on the course, however the contract literally says “guaranteed placement on course within 6 months”


    1. It’s not entirely clear from your question but I think you are saying that you need to do a course in order to increase performance and they are saying they won’t put you on the course until you complete your probation period, even though your contract says “guaranteed placement on course within 6 months”.

      A couple of thoughts:

      • Whether there is a “probation period” or not, they can still sack you anytime within six months (or 12 months for small employers) and be protected from unfair dismissal laws.
      • So, if they want to get rid of you, they don’t have to wait the six months, they can do it now.
      • The phrase “guaranteed placement on course within 6 months” implies they want to see how you perform before putting you on a course. Otherwise they would have put you on the course immediately.
      • Therefore, maybe your performance is borderline and they want to see if you can pick it up before they spend money sending you on a course.

      I suggest you politely ask for more clarification on what goals need to be met in order for you to get the placement. Sometimes all it takes is a little communication to get everything back on track.

      Best wishes,


  113. Hi,
    When exactly is the probation period over? When it hits the 6month on the exact day or until you sign the full-time contract?
    I was let go about 2 weeks after the 6 months and then was called in to have my 6-month appraisal with the HR lady. They let me go on the terms of my ‘non’ attendance – the second week I was at this new job I was hospitalised for 2 weeks and then a few months later my brother passed away and had to head back to New Zealand to be with my family for 1.5weeks. I also have an illness where i have to go into hosital every 2 months to get treatment, i have medical certs for each day i was off/in hospital.
    Over the time i was there i worked overtime almost every day, i would get to work an hour early and would always stay back late to ensure my executive was looked after while he also worked long hours. I am heartbroken they let me go due to my attendance as they know my circumstances. Also while I was there I was subjected to sexual remarks constantly, talked about in a sexual manner (i could read his emails) and was embarrassed by one of the CEOs degrading of me to new partners. I am tempted to take this further but i am unsure if i have any leg to stand on being in the probation period. Do you think i have a case here? Much appreciated in advance for your help.

    1. The first point to clarify is that the probation period is intended to be an opportunity for both the employer and employee to assess whether you are the right person for the position, primarily based on competency and attitudes. It does provide the employer with some protection against unfair dismissal. It does not give the employer any defence for discrimination or harassment and, from your description, it appears you have been subjected to both. A lawyer will be able to take a closer look at your grievances and determine the best approach.

      Good luck,


  114. Hi I was wondering if there was anything that could be done my daughter was working for a club doing bar work and functions she was praised for her work effic and thanked and given an award for coming into work if they needed her and working back she was also told they were going to pay outs train her and had applied for a team leader role for functions and was told they eventually see her doing that role but today after her payouts meeting she had a meeting for her 6mth probation telling her that they were not keeping her on due to her talking to much but would not give her any other feedback although at her 3mth meeting they did mention she talked to much then but in the the next 3 mths all she has had is praise she did recently go out with some employees and one of the security employees tried to feel up her and another of the female staff and they decided that it was best to tell his girlfriend who is also a staff member after confronting her boyfriend she blamed the two girls saying they lied and made a complaint to HR but nothing was ever said but my daughter assumes this has something to do with it
    Hope this makes sense
    But she is devestated as she was working 6 days a week missed her sisters graduation and numerous other things for this employer and after being praised and getting an award this sudden sacking does not make sense on the basis she talks to much

    1. Unfortunately, from what you describe, there is probably little that can be done. Even if they admitted that the complaint to HR led to the dismissal, you would have to prove that the complaint was unfounded if you wanted to contest it. You mention there was a second female staff who was harassed, did she get dismissed too? If she did you might have a circumstantial indication that the complaint was the cause, but even so, she is still within her probationary period so her only hope would be that the club would admit its mistake, reverse its decision and give her another chance. I think that is unlikely.

      The best I can suggest is to learn from the experience. She sounds like she is capable of excellent work, so let that shine in her next role.

      Best wishes,


      1. Thanks David the other girl is off her probation I didn’t think anything could be done
        Enjoy your evening

  115. If have been a contractor at a large company for 12 months. I interviewed and was appointed to my same role as permanent…but It is subject to a probationary minimum employment period of 6 months.

    Where do I stand?


    1. Hopefully the next six months will go smoothly and you won’t have any reason to challenge this. However, I would say that your time as a contractor is separate to your new employment status, but you might want to check that with a lawyer if a problem arises. And, some “contractor” arrangements are not true contractor relationships and you may have an argument that you were in fact employed during that period.

      Best wishes for your career,


      1. Thanks for the response. I was on a fixed term contract for 12 months and made permanent fulltime at 10 months.
        The majority of the department are fixed term contracts in what would otherwise be full time positions.


  116. hi,
    i am in my seventh month of employment after agreement with my employer on a three month casual basis, three month probation basis and confirmation to employment. the problem is that i have been under casual basis for the entire six months and now they are giving me a one week break and start over again on probation when i come back which i term as unfair from my side. i have colleagues in the same department who came three months later and they are already in the payroll. this makes me judge that my case is of discrimination because i am 6 months pregnant and my qualification is higher than my immediate supervisors. they kept on lying to me on talking with the directors about my case but no feedback upto now. what should i do?

    1. Hi Pauline,

      Sorry for the delay in responding. From your description is does sound like they are gaming the system. It is odd to offer a probationary period to a casual as they could let you go at a day’s notice anyway. They wouldn’t have known you were going to get pregnant at that stage so you couldn’t claim that is why they did it. Do they know you are pregnant now? Can you show some evidence that has affected your employment status? If you feel it has, consult a lawyer.

      Hope that is helpful.

      Best wishes,


      1. Hi,
        Pls can someone help me. I was working with an insurance company,on probation for six months,days before my probation ends i had a meeting with my line manager,after the probation review meeting and few issues ironed out he spoke to HR next day and then he told me verbally that i have passed my probation,so i was still expecting it in writting. about 5days later i got to work he pulled me to a room and told me they have to terminate my employment and will pay me 7days in lieu,the reason he said was that a member of the management team listened to one of my calls with a customer and i was laughing on the call well not at the customer but they deemed that as unprofessional behaviour or conduct even though it was a satisfied customer. I was shocked and ask my manager if he has listened to the call he replied no he hasnt listened to the call himself i was like what? but he told me i had to leave as they have terminated my employment. But what am confused about is i had my probation meeting and he confirmed to me verbally that i have passed it and i presume HR have sent him the letter but obviously he was off for few days and probably didnt have the time to give to me. What can i do legally? did they act professionally or followed proper procedures?

        1. Sounds like you have received some shabby treatment but you would need to consult a lawyer to determine if you have any grounds for action. If they terminated you after the six months was completed, and they have over 15 employees, you have access to the unfair dismissal provisions, but I am not sure that you have enough “unfairness” to win such a case, hence you need to talk to a lawyer. A lawyer could also check your contract to see if seven days is sufficient notice.

  117. What is the best way to leave a job within the probationary period, for health related reasons. This was already disclosed to my HR person. I would like to leave with the intent to return in the future, when my health is better. This is a big company, so I would like to be noted as a possible re-hire and not ruin my chance at this. Also, could my health issues and or disability be noted as not re-hiring me? I was wondering if they would possibly work around it by saying called in sick several times during the MEP. If I ask for an exit interview, would then disclose this information to me?

    Thank you

    1. Hi Loren,

      Sorry to hear that you are having a health issue and I am sure worries about work aren’t helping at all. From your explanation I am assuming that you expect to recover sufficiently to resume full duties, so that’s good news at least.

      You mention that the HR person is aware of your situation, so I would suggest you have a frank discussion with her/him and explain your wish to come back when you are well. Assuming you are doing a good job and they want to keep you, they might even give you unpaid leave until you recover.

      Regarding the future, if they did make a note to not rehire, you can be sure it will be for a legally acceptable reason (whether true or not) and definitely not mention your health. Actually, I expect they will wait to see how you are when you re-apply and make a decision at that time.

      They are not allowed to discriminate on the grounds of disability, but if that disability renders you incapable of doing the job, then refusal to employ is not really discriminatory. Or, if you are doing a poor job and they would have let you go anyway, you can’t really claim it was discrimination.

      There is no sure way of knowing what they will do and the best you can hope for is that they are fair and ethical in their dealings with you. Keep the conversation positive, do not mention “discrimination”, and state your case honestly and frankly.

      Best wishes for a speedy recovery.


  118. Hi David

    Thank you providing vital information that really helps!

    My Employer terminated my employment today. I had a probation period of 3 months- Which they extended (Extend of probation is not mentioned in the contract). I was quite surprised when they extended my probation after 3 month for another 3 months. There was no feedback or performance related issues that were brought to my attention. I also sent an email to my manager stating “Can you please provide me with the feedback on what are the areas that I need to work so that I make sure that it never occurs again” I did not get any reply. They asked me to sign the extend of probation letter which I did not as i wanted to know what are the areas that I need to improve. In the fourth month – they terminated my employment by paying all my entitlement. I am I eligible for any claim? as this is really disappointing that I have been terminated without any reasons provided to me.

    There was no development plan or action plan review that took place within my time of Employment there.

    I will look forward for your reply

    1. Hi Mina,

      Unfortunately you do not have access to the unfair dismissal laws due to your length of service being less than six months. The other possibility would be if you could show discrimination, which is an adverse action by an employer because of the person’s, age, colour, race, sex, sexual preference, religion, political opinion, pregnancy, mental or disability, marital status, carer’s or family responsibilities, social origin or national extraction. If you believe you have evidence for that, you should consult a lawyer.

      A small consolation is that your treatment says more about management incompetence than yours. If that is the way they manage their business, you are probably better off out of there. Sorry, I know that’s not much help when you have bills to pay.

      All the best for the future.


  119. i have three month probation period in my contract now i already passed three month but company extended my probation period to six month now its five month running ,i am working in security department of this company ,now the company is closing the department i am working in and i have been terminated from the company,do i have right to get any compensesion from the company

    1. Hi Rajan,

      The laws vary from country to country, but in Australia where I am, if you are a permanent employee, you would be entitled to

      • one week’s notice (maybe more if your contract or award specifies a longer notice period) and
      • any accrued leave

      Hope that helps.



  120. Hi we recently dismissed an employee. They were on a probation extension. They were dismissed on the grounds of not meeting requirements of probation.

    The employee is challenging our decision as they are covered by an eba which states the probationary period shall not exceed three months.

    We are not sure where we stand.

    1. Hi John,

      This comes with my usual disclaimer that I am not a lawyer and this is not legal advice. If you are a member of an employer association, you might have access to free legal advice from them.

      From my experience, the primary consideration will be the length of service and the size of your company, because that will determine if the ex-employee has access to the unfair dismissal laws. The Minimum Employment Period (MEP) for such access is six months for larger companies or 12 months if you have less than 15 employees. If they haven’t reached the MEP, the probationary period is irrelevant because they cannot launch an unfair dismissal claim against you.

      If the extended probationary period overlapped the MEP, and the dismissal occurred outside the MEP, you may have a problem. In that case, I suggest you seek legal advice on the wording of the written contract that extended the probation period and whether that might override the EBA’s clause.

      Hope that is helpful.



      1. Actually, the last comment, “override the EBA’s clause”, is not quite what I meant as it is the MEP that is the important factor. So get legal advice to see if the wording of the contract will provide a defence in the event of an unfair dismissal case being brought against you.



  121. Hi David,
    We recently employed a new team member and it is becoming evident that they are not going to meet the requirements of the role. They are only 3 weeks into the role and we will be looking to terminate soon, effective immediately with pay in lieu.
    Our contract stipulated “Termination: 4 weeks in writing from either party” – my question is: does this override the NES minimum notice period of 1 week? The obvious preference is to pay only 1 week + accrued leave etc. but are we bound to 4 weeks even during probation? There is no additional notice period referenced in the contract with regards to termination during probation.

    1. Hi David,

      As you point out, the NES is a minimum requirement. As the contract stipulates 4 weeks, that will override the NES.

      You might like to grab a copy of our free guide on picking A-Players here.


  122. Hi David,
    Is it common practice for company to insist on 6mnth probation period if employee has been offered new role. Employee has been at company for more than four years.

    1. Hi Conner,

      I can’t speak for everyone, but I would put a probation period into a new contract if an employee moved to a significantly different role. The probation period is meant to be a period of learning and adjustment, when training and feedback are provided to bring the employee up to standard in an unfamiliar role. It gives the employee some breathing space where they are not expected to be fully productive while they are learning, but by the end of probation they will need to be at least as productive as others in that role. With four years of service, you still have access to unfair dismissal laws, regardless of the probation period.



    2. Hi my staff joined on 1st July and resign on 31st August . I need to pay August salary or I can hold the pay? He inform me on 2nd September 2017 that want to resign from the position. I said since you not follow our company rules and regulation. I won’t pay the salary. Ist ok that I tell thia

  123. Hi there,

    I recently started a call centre position that allows me to work from home. There were agreed-upon rates for weekdays and weekends, and I signed an wage agreement (though my employer did not). I have just been told that the CEO of the company who contracts the call centre staff has changed his mind, and wants to change us to an Award system that would significantly decrease the hours rate (by $6/hr) on weekdays, and reduce the number of hours available to us on weekends. He also wants to introduce a probationary period; again this is after I have already started doing the agreed-upon work.

    Can he do this, legally?

    1. Hi CJ,

      You would need to have a lawyer check your contract in order to be sure, but I see two questions here:

      1. Can he/she legally reduce your wages?
      2. Can he/she dispense with your services if you don’t agree?

      My non-lawyer opinion is that, regardless of the answer to question 1, your employer could simply dismiss you if you don’t agree.

      Sorry I couldn’t be more helpful.



  124. Hi Josie, this is an interesting topic. I found your discussion thread while looking up info regarding my daughters predicament. She is employed on a permanent part-time basis by a large fitness chain. The branches are all franchised and the my daughter has been employed by one of these franchisees for the past 18 months. This particular franchisee owns about 5 or 6 fitness centres in the chain and she was recently asked if she would be happy to start working at one of the other branches. Today, I believe she was presented with another contract together with another 3 month probationary period! She is not changing employer and will continue to be paid by the same employer. She is not changing role or her employment status (eg. part-time, full-time, casual…etc) , she is just moving from regular work at one branch to regular work at another branch in the same role. It felt to me that this could be seen as a way of abusing the system as it is giving the employer an option to get rid of staff if they choose without adhering to their normal rights. It is almost as if they are forcing her to terminate her employment at one branch and reemploying her at another! She has spoken to some other staff about this and it appears to be a regular practice there. Is this a normal, acceptable practice for an employer, especially as the staff member has already gone through an initial probationary period with the company?

    1. Hi Mike,

      I’ll start with my usual disclaimer that I am not a lawyer and this is not legal advice only my opinion.

      In some situations, e.g. where an employee is moving into a very different role, it may be appropriate for an employer to impose an additional probationary period. From your description of your daughter’s situation I would have to say that this is not is not one of those situations, so the probationary period is not appropriate.

      However, putting aside the legal, moral and ethical considerations for a moment, my more immediate thoughts would be about power and attitudes. Typically the employer is in the box seat and it’s only an indispensable employee who has sufficient power to challenge the contract, so you might decide to grin and bear it. Then there are the effects that a challenge may have on the attitudes of both parties. A challenge, win or lose, will change the dynamic between employer and employee and the result may be a toxic workplace. So again, you might decide to grin and bear it. On the other hand, if she has a fantastic relationship with her employer, and they think she is a great asset, it may be as simple as saying, “Come on, that’s a bit much. Let’s just put a line through that and then I’ll be happy to sign a new contract.”

      Coming back to the legal aspects, if she has passed the Minimum Employment Period (MEP) for this employer (6 or 12 months depending on number of employees) she will have access to the unfair dismissal provisions if she is terminated. The courts will have to consider the new contract if she has signed it, but I (as a non-lawyer) believe they will view it as being signed under duress and therefore not valid. The courts try to be very fair and they understand the power differential very well, so they can be quite sympathetic to the employee’s position.

      I suppose it boils down to whether you want to make an issue out of it, or view it as something that will go away in three months anyway.

      One final thought. Seeing that other employees have signed these contracts and survived, it would indicate that there is probably no sinister motivation behind it, possibly just an employer trying to cover all bases.

      I hope that is helpful,



  125. Hello, can I ask an employer to reduce my probation period because I want to apply for a mortgage and the mortgage provider requires that I am out of probation before agreeing to provide the loan. I have been applied for 2 months out of a probation period of 6 months and doing well in the job.
    Thank you,
    Josie A

    1. Hi Josie,

      Yes, you can certainly ask! If you explain your circumstances, there is a fair chance that a reasonable employer would grant your request, but they may not.

      It really makes no difference to the employer. Because you cannot access the unfair dismissal law until you have been employed at least six months, that period acts as a de-facto probation period anyway.

      Good luck


        1. Hi Guiter,

          I can only comment in relation to my understanding of Australian Law. You would need to assess my response in respect of your local laws. And, it is not clear if you are an employer or employee, so I will answer from an employer’s perspective which I hope will be helpful either way.

          Here in Australia it used to be that “probationary periods” were the main defence against unfair dismissal claims. The laws were changed many years ago to prevent new employees raising an unfair dismissal claim until they had been employed for at least six months in large organisations, or twelve months for smaller companies.

          This then reduced the scope of the probationary period and it is now essentially a training and performance management period during which both the employer and the employee assess whether they are the right fit for each other.

          New recruits generally accept that there will be a period of probation when they start. It would be possible here to put someone under probation after three months work because they have no recourse except to quit if they don’t like it. However, after three months employment, just the mention of the term “probation” can cause anxiety and resentment which can make the whole thing counter-productive.

          In this context, to answer your question, I suggest you don’t use the negative term “probation” but go with a performance management process instead. There must be some shortcomings that have raised the issue of probation. Identify these shortcomings with the employee, document an action plan to address them, get agreement on timelines and consequences, and move forward with regular documented reviews. Make it clear that these are the standards that must be met to ensure employment and provide support to achieve the desired result. If after a reasonable time and effort the standards are not being met, you may have to terminate.

          This comes with my usual disclaimer that I am not a lawyer and this is not legal advice, only my personal opinion. You should seek legal advice from a lawyer competent in your jurisdiction before acting on any information on this site.

          Hope that is helpful.

          Good luck!


  126. Hi, Thank you if you could please reply to my email and guide me through this.
    1. when is the right time to consult with an employee that we need to let them go after their probation (6 months)? (after being in a job for 3 months)
    2. They have been performing ok in their role but the behavior is at question
    3. Do you need to let them know in advance before the 6 months ends or you have to give 1 week notice
    If you could please shed some light into this that would be much appreciated. Thanking you in advance

    1. Hi Natasha,

      The six months is not an obligation on you to employ the person for that period. It is just a time scale for you to assess the person, provide feedback and guidance, indicate any problems and give them a chance to rectify them.

      If you have given them a fair go, and have decided they are not the right fit, you can terminate them as soon as you make that decision, even if it has only been a few weeks.

      If you wait until the six months expire, then threoretically you have accepted them as a permanent employee and you will have to go through a dismissal procedure with warnings etc to get rid of them. So act now.

      With less than six months service they cannot access the unfair dismissal laws so, as long as there is no discrimination involved, you should be perfectly within your rights to dismiss now. You will have to give the required notice, usually one week.

      Hope that is helpful.



  127. Hi David,

    Highly appreciated your thoughts on my situation right now. My probation period finished on the 28/05. I got a letter from my employer with salary reduced almost 10k on the 25/05. Not happy but no choice at the moment. I am looking to find another job but definitely I need to accept this one in the meantime.

    I would like to know what will happen with my entitlements – my leave accrued after 6 months on probation period. Should I ask them to pay me those accrued leave days around 10 days with my initial salary before I sign on Monday the contract with reduced salary? They mentioned that as it would be a lower rate won’t be a probation period. My concern is because after signed the new reduced contract when I take holidays – as far as I have heard they will do payments based on the current rate. I haven’t faced this situation before and not sure what is the best way to go. Thank you for your prompt feedback as in Monday 29/05 I need to discuss with them my situation and sign my new reduced contract unfortunately 😂.

    1. Hi Tina,

      That sounds like a massive drop in pay. Have you challenged them to justify that reduction?

      I am sure you are correct that they will pay leave at the rate current at the time when you take holidays.

      If you left now, before signing the new employment contract, they would have to pay your leave entitlements out at the higher rate. However, if you remain employed, they are under no obligation pay out your leave and in fact would not be legally able to do so.

      I think the best you can hope for is to get an agreement (in writing) to preserve your current entitlements at the higher rate for whenever you take the leave. From an accounting viewpoint, they will have already accrued that amount so it should be no problem for them.

      Try to keep cool, calm and professional in your negotiations and be assertive, not aggressive.

      Good luck!



      1. Hi David,

        Much appreciate your prompt feedback! Sure I will remain very professional – I will soon find an employee that really appreciate a valuable employee.

        You have a lovely week! Once again thank.

        Kind Regards, T

  128. Hi David,

    I just received my letter of employment from the company I’m due to start working at next month. I was not made aware of the fact that there would be a probation period but also that I would be earning less than what was stated on the job ad for that probation period. I have already worked out living costs on the salary stated on the job ad. The employer assures me that I will receive that salary after the probation period is over but I still don’t feel this is right as I was not made aware of it on the job ad or at the interview? Should I not be getting the salary stated on the job ad even during my probation period?

    1. Hi Holly,

      This is one where a lawyer would need to examine all the communications to determine the exact position, but for what its worth here is my take on your situation.

      For an employer to treat a new employee in this fashion is really dumb. It is a penny-pinching exercise that devalues the employee and the quality of their recruitment process. Any employee who has been blindsided by this type of last minute change to conditions would start with a very poor opinion of their employer. In contrast, smart employers try to do everything possible to have their new recruits fully engaged from day one, and that means communicating well with no surprises.

      Having said that, I think your particular situation depends on when you were made aware of the reduced salary. The fact that it was advertised at a certain rate does have some bearing but it will be the final negotiation and offer that is most important. If you got an offer at a reduced rate, you had a choice on whether to accept it or not and, if you accepted it, that is then your contract of employment and you’re stuck with it (in my non-lawyer opinion). However, if they made an offer and you accepted it before they mentioned the reduced rate, then maybe you have a legitimate case.

      Adding in a probation period is in itself no big deal because you don’t have access to unfair dismissal until you pass the minimum employment period anyway. Looked at in a positive light, the probation period is a training and feedback opportunity that helps you perform well in the role.

      As always, you should consider the longer-term working relationship and try to negotiate a reasonable outcome for both as professionally as possible. Or you may decide that it is not worth the trouble of complaining, or conversely that it is not worth taking the job at the reduced rate.

      Hope that is helpful and that it all works out for you.



  129. Hi,
    I was offered a permanent part time position with a 3 month trial. The hours were agreed to be 25 to 30 per week. I was told that while on trial I would be paid as a casual. The agreement was verbal. My trial period ended, nothing was said. I requested a meeting with the manager to get formal confirmation the I had secured the position. 21 days passed beyond that point, & I was told that I had a meeting the next day. At this meeting I was adivised that I wasn’t working quick enough, so I was being put on a further 3 month trial. I simply said that I would try harder. I still haven’t been asked to sign anything. What do I do? My direct supervisor is grumpy & snappy all the time. Apparently that is usual……I need a job, so I have just put up with the whole situation.

    1. Hi Mandy,
      Sorry for the delay in getting back to you, I have been on leave over Easter.

      You could see if there is an award or enterprise agreement that covers workers at your employer, and check that for any references to casual workers to see if any conditions are specified that may help in your situation. You might also like to look at “When Casual Employment is Actually Permanent Employment” over on the Law Answers website.

      If that doesn’t help, without a written agreement specifying you were offered a permanent position I can’t see that you have much choice but to accept the situation for now, and keep your eyes open for other opportunities.

      Best wishes,


  130. Hi

    I am in my 6 months probation period on a permanent full time role in Australia for a company with more than 25 employees. With only 1 month and 20 days from my probation period come to the end. My manager said that probably they won’t be in the position to continue offering me the same salary as the role I was doing wasn’t a role for that salary. I told her that I was hired for the role with the salary noted in my contract and since I started performing the tasks allocated from my team leader so I wasn’t given the opportunity to demonstrate my expertise, skills & qualifications for the role I was hired. I told her that it was something to think about it. No sure what to do here your thoughts would be highly appreciated. I don’t want to Changes jobs as I am planning to get pregnant after the probation period and also get a mortgage so I prefer something stable in terms of preapprovals from lenders.

    1. With your probation period nearing its end, the company will have to make a decision soon. What they have offered could be seen as an ultimatum, take less money or leave. If you insist on the terms in your employment contract, they could simply say you haven’t worked out, goodbye. If you accept the lower rate, you have effectively altered your terms and conditions.

      If they hired you for a particular job and you aren’t doing it, who is? If it’s not being done, you could try insisting (diplomatically) on doing the job you were hired for which would justify your salary. However, if the higher duties have been absorbed into other roles and you have been left with the low level duties, you may not have much choice but to accept the lower rate. Is there an opportunity to move into a higher paid position later? Can you work for a company that dudded you within the first six months?

      Ultimately you will need to give due consideration for your personal plans. Can you live on the new rate? Will it be sufficient to get the mortgage you require?

      Good luck.


  131. Hi David
    I have recently commenced work with a probationary period of 3 months. I am 6 weeks in. I know that I am fully capable of performing the role, but am having great difficulty with the restrictions imposed on my ability to do my job by my boss who is constantly withholding information from me that I need to do my job properly. I have tried on several occassions to broach this with her and keep getting different answers – like “I want to see if you can figure it out for yourself”, or “I still haven’t decided whether you are the right fit, so don’t want you to have too much information” or “I haven’t decided yet whether I can trust you to deal with that contact”. She also regularly reminds me I am on probation, which is seriously undermining my confidence in the work place. I have told her as honestly as I can, that with these restrictions I feel I am not being given a fair chance to prove I can do my job, yet it seems to get worse each week.
    I am working for a not-for-profit organisation in fundraising, so it is not like I am going to steal any secure information or knowledge. And I also feel that given my job which is creating new events and opportunities for fundraising – maybe it should work both ways – what if I give them a brilliant idea and they use my idea but don’t employ me after 3 months.
    After a meeting with my boss this afternoon I was left feeling almost certain that she is not going to keep me on after my probation, or will at least try to extend it for another 3 months, which is in my contract. I just don’t know if it is worth the stress and effort of putting up with these conditions for any longer when the outcome already seems inevitable.
    I am just asking for advice here, as I know in the end it is my decision. My boss is middle management, and I get the feeling that the CEO does think I am doing a good job, as he often praises me for my efforts, where as my manager has never given me any positive feedback, only criticism. She even told me today if I didn’t have something done by Monday I would be in ‘big trouble’. (I am 49 years old and haven’t been spoken to like that since I was a child) She also never told me previously that this task had a time frame on it. And when I have asked her previously to give me a time frame or tell me which tasks are a priority, she says I have to learn better time management, but never gives me an answer.
    So my question is – should I go straight to the CEO and tell him what is going on? At this point it really feels like I have nothing to lose.
    Thanks for your time. – Bec

    1. Hi Bec,

      I had a boss a long time ago who gave me a really hard time during the probation but turned out to be okay once I got through that. I found out that he did that with every new recruit to set the ground rules for the employment relationship. That sort of behaviour is not acceptable these days and is indicative of a boss who is very insecure and a poor manager.

      Are there other people at your level reporting to this manager? Can you talk to them about their experiences when they started to see if this is just her style of management? Are they happy to work for her now? If they struggled at first but enjoy working there now, then it might be worth persevering. If they had a smooth run, then you may have a personality-clash problem. If they struggled then and are still struggling now, you are better off leaving.

      If you can’t talk to your peers and you are getting nowhere with your manager, it sounds like you are in a situation where, as you say, you have nothing to lose in going to the CEO.

      Good luck,


  132. Hello, we need some help.

    We are a small business and have a long term full time 3yrs employee who is being restructured from a warehouse role to a purchasing role. My question is: Are we able to place this employee onto a new probation period of 3 months? As we are filling the role in warehousing with new staff, their position will not be available to them should they not cope with the new role, and we will have to terminate employment . Please advise any probation options available to us should they not work out.

    1. Hi Faith,

      If you have explained to the employee that they are leaving the old position permanently and this is a new position with a new employment contract that contains a probation period, AND they have agreed to all that willingly, then you should be okay.

      The concern I have from your question is your use of the phrase “who is being restructured” which sounds like the employee hasn’t been given a choice, in which case you have made the decision to move the person and a probation period would be somewhat unfair and hard to defend.

      As always, my usual disclaimer – I am not a lawyer and this is a personal opinion that should not be relied upon as legal advice. Always seek professional legal advice if in doubt.

      Hope that helps.



  133. Hi David,
    Shortly after her employment, a staff member disclosed her pregnancy. Unfortunately, it has been a difficult pregnancy and she has taken more time off than has been in the office – Sick leave always evidenced. HR, in consultation with the employee, extended the probation period (employee is still under probation) to allow more time to assess suitability. However, the employee has now been absent for a period of two weeks and the strain is showing on the rest of the organisation. Do you think it would be considered discrimination if the employee does not pass probation. As reception/front of house/admin officer, ability to attend work is paramount in the day to day operation of our organisation.

    1. Hi Rebecca,

      This is one where I must definitely point out that I am not a lawyer, and what follows is just a personal opinion and shouldn’t be relied upon. You really should seek legal advice. I particularly stress that in this case because there are so many grey areas that could affect the outcome and I don’t know all that has happened, or will happen as this plays out.

      If you do dismiss her, make sure you document the valid reasons for doing so. Consider it from a worst-case scenario and assume that she will claim discrimination because she is pregnant and unwell. You will need to show that you had good reason to terminate, and the pregnancy did not affect your decision. Consider how well has she performed in the times she has attended. If her work was poor, do you have documented counseling notes to verify that?

      When is the baby due? Have you spoken to her about the amount of sick leave, and is she likely to get better or worse? Have you asked her about her plans for taking care of the baby when it arrives? If she wants time off when the baby comes, perhaps she should consider starting now and avoid the stress of trying to work while she is unwell. A good heart-to-heart talk, with no pressure, may see her offer to leave of her own accord.

      There is a tipping point where excessive sick leave can justify termination but every case is different and the courts would want to weigh up all the circumstances to determine if it was reasonable to terminate or not. You really don’t want to end up in court if you can help it, particularly when you would be fighting a pregnant woman who might well claim that it is all the stress of losing her job that is making her sick and endangering her baby. If you can talk to her reasonably, she might agree that it is not working out at the moment and see the wisdom in taking a break until the baby is settled. You could sweeten the pot by saying you will wipe the slate clean and consider her for a future position when she is ready to rejoin the workforce.

      Please do check with a lawyer.

      Hope that helps a bit.



  134. Hi David,

    A bit of a reversed situation here. I am currently employed and under a probation period of 6 months. I know that after 2 weeks in the role that unfortunately I am not a right fit for the organisation. I have signed an employment contract which stipulates under probation period both the employee or employer can terminate the contract with 1 weeks notice. The employment contract also ties me to an enterprise agreement which states that the employee must give 4 weeks notice for resignation.

    My employer is now trying to tell me that I have to give 4 weeks notice or they will with-hold pay and also charge me for the 3 weeks that I didn’t intend to work. They have also acknowledged that whilst the employment contract contradicts the EBA, they still believe the EBA takes precedence. I believe that even though there is an EBA (which doesn’t have any mention of a probation period) I also have an individually signed contract which states the prohibition period is 6 months and any party can terminate with 1 weeks notice during this period.

    Knowing your not a lawyer I would still really appreciate your take on it.



    1. Hi Tim,

      Yes this is a bit different. I can appreciate they would be a bit angry that you are going after all the hard work it takes to recruit someone, and now they have to start over. However, I think that the employment contract would take precedence over the EBA as it spells out the terms of your engagement and, even though it refers to the EBA, I suspect that the EBA termination clauses would only apply once you have completed the probation period. Of course you can’t have it both ways, give one week’s notice and get four weeks’ pay, but I am sure you realise that. I do wonder how much work they expect to get from you if they keep you on for four weeks. Perhaps they are worried you might try to claim the four weeks pay after you leave? If so you could sign a termination agreement saying you are happy with one week’s pay. I think you have some negotiating to do.

      Good luck!


  135. I started a new job and was employed as permanent part time, after 2 mths I was told my probation period was being cut there and then, was told nothing more than that and was told not to come in the next day. I looked at my contract and there is nothing about me being on probation as I was employed as a permanent, can they do this or do I have an unfair dismissal case?

    1. I will start with my usual disclaimer. I am not a lawyer and cannot provide legal advice, only a personal opinion. And, I am assuming that you are in Australia working under Australian laws.

      Sorry, the short answer is “No, you can’t apply for unfair dismissal.” but here are a few things worth considering:

      • The reason you don’t have an unfair dismissal case is that you have not reached the Minimum Employment Period (MEP), which is six months, or 12 months for small businesses with fewer than 15 employees. The law says that you must have worked for the business for at least the MEP before you can apply for unfair dismissal.
      • However, there are other courses of action if you have been dismissed on the basis of a breach of general protections or discrimination. See Protections at Work on the Australian Government Fair Work Ombudsman website.
      • Regardless of whether there was a probation period or not, if you are a permanent employee you are entitled to a notice period and accrued leave for the period that you have worked. Check your award and employment contract to determine how much notice they should give you.
      • Even if a “probation period” did exist, it is not a separate period of employment. It is a period during which the employer trains and assesses the employee to determine if that employee will be worth keeping or not. Ideally, the employer will provide feedback and training during this period to correct any shortcomings and give the employee the best opportunity to prove their competency in the tasks required by the job. This doesn’t always happen unfortunately.
      • Once you get over your shock and anger, and can calmly review the circumstances, try to determine what, if anything, you might have done differently to get a better outcome. There are always things we can learn to make us better the next time around.

      Hope that is of some help. Best wishes for your future.

      1. Hi, Great advice.

        I Have been contracted to a Team Leader role with a 6month probation period that allows me to learn the position as a Store Manager. Although, I have been in this role for a year now without my contract changing from a Team leader to a Store Manager and i have been requesting performance reports and i am doing everything successfully. Although, they are saying my Store doesn’t make enough money so they can’t give me the Manger’s salary?

        I have been doing a Store Manager’s position but getting paid as a Team Leader. Am i able to get legal action about this matter?

        1. Hi Sally,

          You would need to consult a lawyer to determine if you have a case. They would need to examine your contract, any communications you may have had that mention moving into the Store Manager’s role, and how your duties align with the Award Classifications. e.g. Schedule B of the General Retail Industry Award 2010 lists the duties applicable to each of the eight Classifications under the award. If the duties you are performing are at level 4 and you are being paid at level 3, you would have a case, and you probably don’t need a lawyer to point that out, you could do that yourself.

          Even if the lawyers determine that you have a case, you might want to consider what effect a court case might have on your working relationship with your employer and whether it is all worth the trouble.

          If your employer is saying the store turnover is not sufficient, a more positive strategy would be to negotiate what turnover would be sufficient to get you to the next level, and seek their support in making it happen as a win-win outcome. If you are good at your job, they would be foolish not to support you. If your store is not big enough, maybe you can move to a larger store.

          If all else fails, keep your eyes open for other opportunities. A lot of career progression comes from changing companies to move up into more senior positions.

          Hope that is helpful.

          Best wishes,


  136. Hi, do employees have to give a certain amount of notice before quitting on the day their probationary period ends? Or does their contract end when their probationary period ends and they are able to quit on the spot?

    1. The probationary period is just the time interval that is set for assessment. It does not change the requirements for notice periods. So, yes, you will have to give notice, and if your employer were to terminate you, they would have to give the appropriate notice.

  137. I joined a giant organization recently and now going on maternity leave of 6months after 3months from joining dates. My probation period is of 6months. I am worried what will happen to my confirmation. Can the company terminate me in 3months as I will be going on maternity leave. Or they should give me fair chance either by extending my probation period after leave. Please help what I can do about this situation.

    1. As always, I am obliged to say up front that I am not a lawyer and cannot provide legal advice only a personal opinion. And, I am assuming that you are in Australia working under Australian laws.

      The way I see it, there are three aspects to this –

      • First, there is the probation period. If they were to terminate you for performance, there’s not a lot you can do.
      • However, if your performance has not been an issue, and you could prove they terminated you because you are pregnant, you might be able to make a case that they are in breach of discrimination laws. Of course, even if you won, it would be a very unpleasant experience for everyone.
      • And third, you are actually not eligible for parental leave until after twelve months of service with the company, so you are asking for six months off which they are not obliged to give you. In other words, they can simply say that, if you want the time off, you will have to resign.

      A couple of other thoughts…

      • Did they know you were pregnant when they hired you? If so you might just be worrying about nothing.
      • Have you been doing a good job? If so you might just be worrying about nothing.
      • Have they approved your leave? If so you might just be worrying about nothing.
      • You were good enough to win this job with a big company so, if necessary, you can do it again. So you might just be worrying about nothing.

      Sorry if that sounds a but flippant, but worrying about what might or might not happen is not good for you or your baby. I recommend that you discuss it openly with your boss as soon as possible and then you will know where you stand and can make your plans accordingly. Whatever the outcome, focus on yourself and your baby for the next six months and try not to worry about the future until it happens. Best wishes for a smooth delivery!



      1. Thanks David for your reply. I am working in India. So I need to look for some provisions under indian law.
        And Thankyou for your wishes about my delivery.

    1. There is no restriction on applying a probation period to the CEO. However, a CEO will be looking to the long term health of the company and a probation period would generally be too short to properly assess how they are performing. Because of the wide-ranging responsibilities and the difficulty in securing great CEOs, they are usually on a fixed term, performance contract.

  138. Hello,

    I started with this company in January 2016. In May, I was made an Assistant Manager. There was no new contract signed, but was given extra responsibilities. In my one and only workplace review so far (October), I discovered I had been on probation. The manager and area manager never told me I had been on probation when I agreed to the new role. I am still employed with them, and have not been told if I am still on probation.

    I have read the Fair Work section relevant to my industry, and noticed that my pay rate would have increased working as an assistant manager. I asked the manager if my wages were to remain the same as a part-timer, at which they acted strangely, and they responded that they got payed the same rate (which I find hard to believe, considering they’re the manager).

    As it is now, my wages are that of a part timer not A/manager, and having no new contract or written agreement, I can’t go back and check. So my question is: If I am in a probationary period, do I get payed the same rate if I am performing that role ? Or does a probationary period mean you get payed “less” than if you weren’t in probation?

    1. With my usual proviso that this is not legal advice, I would say that, as a general principle, if you get a promotion and are expected to take on more responsibility, you should also expect to be paid more.

      However, there is one point in your question that I need to clarify. You say “I asked the manager if my wages were to remain the same as a part-timer”. My answer to that question would be “Yes, they get paid the same rate”. If you are doing the same work, it is normal that part-time employees get the same hourly pay rate as full-time employees. You may be thinking of casual employees who get a loading, whether they are part time or full time, to compensate them for not getting leave entitlements.

      The question you should be asking is “How much will my pay increase now that I am taking on the extra responsibilities of an Assistant Manager?”. The first thing to check would be if you are covered by an Award or Agreement and then see if that specifies the pay rate you should be on for the duties you are now undertaking.

      Now, to answer your question, a probationary period does not affect the pay or conditions to which you are entitled (see extract below from Fair Work). In fact the company would find it hard to justify such a long probationary period (May to October) and, in any case, if they say you are on probation for the Assistant Manager role and it doesn’t work out, then you should still be employed in your original position. If all else fails, you can probably access the unfair dismissal provisions, see second extract below.

      Hope that helps. Good luck.


      Employee entitlements on probation

      Probation periods aren’t a separate period of employment.

      While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.

      If hired on a full-time or part-time basis, an employee on probation is entitled to accrue and access their paid leave entitlements such as annual leave and sick leave.

      If an employee doesn’t pass their probation, they are still entitled to receive notice when employment ends and have their unused accumulated annual leave hours paid out.

      Minimum employment period
      Employees have to be employed for at least 6 months before they can apply for unfair dismissal.

      Employees working for a small business have to be employed for at least 12 months before they can apply.

  139. I work for a giant organization, I am half way through my 6 months probation period (executive role) and had no performance issue what’s over. However, the role itself is no longer required as they are restructuring the team and they have not planned it properly before recruiting me. Can they just dismiss me with 1-week notice or should they give a longer notice (or payout)? I’m guessing they should match my 3 months notice period for after my probation. it doesn’t seem fair to only pay me for 1 week just because they didn’t plan it right.

    1. Hi Fred,

      As always, I am obliged to say up front that I am not a lawyer and cannot provide legal advice only a personal opinion. And, I am assuming that you are in Australia working under Australian laws.

      Under the Fair Work Act they only need to give one week’s notice, but this could be overridden if something different is written into your employment contract. From your comment it sounds like the contract provides for a three-month notice period, but you also say it is to apply after the probation period. The wording will be critical on how that part of the contract will apply in this situation. If it just states that a three-month notice period will apply, you are in a strong position. However if it clearly states that the three-month notice will only come into effect after the probation period, then you are probably out of luck.

      If the employment contract is silent on this matter, the other argument that is sometimes used is that you should at least get one pay-period of notice, so if you are monthly-paid you might get them to agree to a month’s pay. I don’t think they are required to do this and it would be at their discretion in the interest of fairness, coupled with an element of guilt for mucking you about.

      If you think you have a case, take it up with your employer in the first instance, and if not satisfied consult a lawyer.

      Best wishes,


  140. I am working for a company, which i started 2 months back. I was offered a salary and i didnt negotiate. Now i came to know my salary is higher than some other employers, who were already working since 3-4 years.( but this is not my concern, since they only judged me and my skills)I am in my probation period( 6 months) . Company is facing some financial crisis and said me, since i m a frescher and in my training period, they will reduce my salary to 80% till i am trained to take my responsibility as a Project manager. They should atleast give me my probationary time to learn then they should judge me whether i am a good fit or not. They are telling, if i am ok with salary reduction then i can stay else i can leave.Now i need to know, whether any company can reduce salary during probation period? What rights i have since they didnt give me full probationary period to show my capabilities?Can they do this?What i m supposed to do ?

    1. Hi Shradha,

      As always, I am obliged to say up front that I am not a lawyer and cannot provide legal advice only a personal opinion. And, I am assuming that you are in Australia working under Australian laws.

      From what you have said, the company has indicated that if you refuse the reduction in salary you can leave, effectively giving you only two choices “pay cut” or “dismissal”. So what options do you have?

      • You are probably aware that you do not have access to unfair dismissal remedies because you are under the Minimum Employment Period (MEP) which is six months for large organisations and 12 months for small businesses.
      • You might have a contractual argument if your employment contract is so poorly written that it specifically states that you will be employed for six months, but that is highly unlikely.
      • Another unlikely possibility could be discrimination if you can show, to the Court’s satisfaction, that the dismissal was due to one or more of the protected attributes which are race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.
      • If you accept the pay cut, you could try to negotiate a smaller reduction, or at least get agreement on the performance indicators that will see your salary reinstated to 100%.
      • You might want to think long and hard about what this situation tells you about the company, its ethics and values. Will you be satisfied working for this company in the long term?
      • Depending on your personal circumstances,
        • if you can’t afford to be unemployed for any period of time, you might need to accept the reduction while you look for alternative employment
        • you could resign. If you do, maintain your dignity and professionalism, explain that you find the reduction unacceptable, but leave on good terms. My philosophy is to never burn bridges, you never know what the future may bring.

      Sorry I couldn’t give you better options. Hope this helps to some extent.

      Best wishes


      1. Thanks a lot for your advise.
        I am an Indian citizen, been France for Master studies. Company is a French one and working offshore in India. They hired me because I know French, being indian they need not to sponsor my VISA . Now this situation arises, I can not go back to France to search for job since my VISA expired 24.09.2016 and didnt look for other jobs also.

        1. Hi Shradha,

          That’s a tough situation! I am not familiar with the workplace laws in India or France, so can’t comment there. It seems that my fourth suggestion might give you the best outcome, “accept the pay cut and try to negotiate a smaller reduction, or at least get agreement on the performance indicators that will see your salary reinstated to 100%.”

          Best wishes and good luck,


  141. Hi David, I was told near the end of my probation period (6 months) that I’m not meeting the expectation. However, they have decided to extend my probation for another month to see if things will get better. I received a letter from my employer re extension but I wasn’t asked to agree to it. Can they extend without me agreeing, in a way I’m forced to accept it? After 6 months I would have reached the MEP which would enable me to claim unfair dismassal in the event? Appreciate your thoughts.

    1. Hi Jay,

      I can’t comment on the legal aspects of whether you need to formally agree to the extension, but it might be argued that if you didn’t like the terms you could have quit, and by continuing to go to work you have tacitly agreed.

      In any case, it seems to me that the employer is doing you a favour by allowing an extra month for you to prove yourself. They could have just let you go there and then. If you are still not meeting expectations after seven months, well perhaps it is not the ideal role for you and you would be better off in a different position in another company.

      You would have to consult a lawyer to determine if you could access the unfair dismissal law and, even if you could, you still need to show it was “unfair” and that doesn’t seem to be the case here. My advice, if you want the job, do your very best to meet the expectations. If it doesn’t work out, try to leave on good terms in case of a reference check. And don’t bad-mouth them at your next interview, instead offer a thoughtful critique of the experience and what you have learned from it. Doing that will make you look very professional.

      Best wishes for your career.


  142. My company told me verbally i did not pass the 6 probation period 1 week before it finished but then i never got a written notice of termination after that and the 6 months has passed. Is that illegal or do they only have to tell me verbally. I was on a 6 month probation period for a large company and was told there was a personality clash with me and another lady in the office.

    1. Hi Amelia,

      Sorry to hear you had some problems with your employer. In an ideal world an employer would provide regular feedback during the probationary period (and beyond) and advise you of any issues to give you a chance to correct them. A “personality clash” is a poor excuse for termination and more specific feedback that you could act on would have been better.

      To answer your question, this is from the Fair Work website, advice to employers:

      “If an employee doesn’t pass their probation, they are still entitled to receive notice when employment ends and have their unused accumulated annual leave hours paid out.

      Under the NES, you need to give an employee written notice to end his or her employment. The written notice should specify:
      • the period of notice given (or payment in lieu of notice), and
      • the date the employment will end.

      Remember to also check if the letter of engagement or a relevant industrial instrument (e.g. an award or an enterprise agreement) contains a longer notice period. If they do, the longer notice period will apply.”

      And, this is from the Australian HR Institute:

      “Probationary periods provide employers and employees the opportunity to assess whether they wish the employment relationship to continue into the future. However, an employer’s rights and liabilities upon termination will be affected by an employee’s status as being inside, or outside
      the minimum employment period.

      The FW Act requires that in order for a dismissed employee to access unfair dismissal laws, the employee must have served a minimum employment period (MEP) of 6 months, or 12 months if the employer employs less than 15 employees. That is the case regardless of whether the employment
      contract includes a probationary or trial period.”

  143. My husband has handed his notice in at work giving one weeks notice. His employer has said he was two days over the end of his probation period and must give a months notice. They are now saying they will not pay his holiday pay or expenses. They did not inform him his probation period had ended. Do they have to inform you?

    1. I must declare at the outset that I am not a lawyer and cannot provide legal advice. However the Fair Work Ombudsman site does provide some guidance for your situation. They say:

      “When an employee resigns, they may have to give notice to their employer. The notice:

      • starts when the employee gives notice that they want to end the employment
      • ends on the last day of employment.

      An employee’s award, employment contract, enterprise agreement or other registered agreement sets out:

      • how much notice (if any) they have to give when they resign
      • when an employer can withhold money if they don’t give the minimum notice period.

      If you’re covered by a registered agreement, check the terms of your agreement for information. To find a registered agreement, go to the Fair Work Commission website”

      My suggestion is to read through any employment contract or agreement that covers your husband to see if this situation is covered. If you feel that the employer is not acting in good faith, discuss this with the employer in the first instance to see if you can negotiate an acceptable compromise. If you still feel strongly that it is unfair, see the Help Resolving Workplace Issues page of the Fair Work Ombudsman.

      Good luck and best wishes,

  144. I just started a new job a month ago. Last week, I found myself pregnant and I told my line manager last Monday. I also expressed to her that I am in full capacity of doing my job as a full timer during my pregnancy.
    My manager said she appreciated my honest, and she will have a chat with the HR and get back to me a.s.a.p. It was quite peaceful after that until yesterday afternoon at 4:30 my manager came to my desk and said HR manager and herself would like to have a meeting with me.
    The meeting turned out to be a termination notification. HR manager gave me a notice listing the reasons of my termination (My role was assistant accountant) :
    1. CFO has raised the issue that the weekly payment not being processed in a timely and efficient manner-This has never been expressed to me neither orally or in written form.
    2. On at least two occasions, requests and instructions to process urgent payments have not been actioned- I have given reasons why the payments have not been actioned. And I have mentioned none of these reasons are within my own control. HR responded that she would put this in the notes.
    3. My manager also mentioned I have made mistakes in the second week after I started. I admitted but I also mentioned I never made the same mistakes in the following weeks. My manager admitted that as well.

    To sum up, this termination happened totally out of a blue and I got this feeling that it is tightly related to my pregnancy. Before this, there was no review/follow up meetings from my manager to provide constructive feedback to the employee of how they are coping with the role and whether they are making the expected progress in their learning and contributions.

    My role was a permanent one with 6 months probation period. My question is, is there any possibilities that I could take legal action in my case?

    Thank you in advance.

    1. Hi Jacinta,

      Sorry to hear of your troubles. I must declare at the outset that I am not a lawyer and cannot provide legal advice. However the Fair Work Act 2009 does provide some guidance for your situation and indicates that, although you are not able to take unfair dismissal action because you have been employed less than six months, you might have some options under the anti-discrimination section. If you feel you have been a victim of discrimination, and want to take some action against the company, you should see a lawyer to test the strength of your case.

      Best wishes.,


      1. Hi, if I resign within my 6 month probation period, is my contract still void? If in my contract states post agreement restraints non compete and non solicit, does this still apply even if I have resigned within my probation period? Thank you

        1. I am not a lawyer but I think the contract probably remains in force The company may not enforce it depending on the costs versus the damage you might do. You should consult a lawyer who can advise you on the contract wording and your particular circumstances.

  145. I am in my probation period. My company is a very large conglomerate and hence have partner alliance worldwide with major logos. During my probation period, can I apply for jobs in global alliance partner company? Will this be a breach of contract, especially I being in sales team?

    If I apply in partner company and during interview if they as “Have I ever worked with a partner or competitor” what should I say, even though my engagement has only been for a couple of weeks.

    1. Hi Jack,

      This is a complex problem with many layers to consider. I am not a lawyer and I cannot advise you on a course of action but I can suggest a few things you might want to consider going forward.

      Contracts of employment are a two-way obligation and your employer has a right to expect you will honour your part of the bargain. If they are not delivering from their side, you would have an argument for leaving, but since you have only been there a few weeks that seems unlikely. You would need to consult a lawyer to get a proper opinion of where you stand, because there may be specific clauses in your contract affecting what you can do. But consider the following as well.

      The most important consideration is you yourself. In this situation you may have a conflict between maximising your career/income opportunities and maintaining your integrity. It can be a slippery slope to compromise your integrity and it may well have negative impacts on your career/income aspirations.

      In the past I have hired sales people away from competitors and it usually causes some angst but on one occasion the competitor concerned threatened to sue the employee and this caused him a great deal of stress before they eventually dropped the case. In another case, I lost a major customer because one of their managers left to come work for us. So some companies do take great offence and can cause some grief. The company you are working for may have similar attitudes to employees who go to suppliers, partners and competitors. Perhaps you can pick up some clues about your company’s attitude by finding out what you can about previous leavers.

      The other side of the equation is the partner company you are considering. You must be honest with them and tell them who you are working for. If you were hired and then they discovered you were working for their partner, it might cause problems for your new employer and would definitely not look good for you.

      Hope that helps. Good luck with your career.

Leave a comment

Your email address will not be published. Required fields are marked *