We ran an article a couple of years ago on Probation Periods and every month we get questions that indicate there is some confusion about probation periods and how they relate to the Minimum Employment Period (MEP).
Probation Periods
Do you even need to have a probation period?
Historically, the Probation Period was a must-have clause in every contract to protect the employer from unfair dismissal. If that’s your only reason to have a probation period, you may as well delete it as the Minimum Employment Period takes care of that risk (see below).
Today, Probation Periods are an opportunity for both the employer and the employee to evaluate if there is a good fit for the role and the company culture. If used in this manner, there are some strong benefits in having a Probation Period:
- It is a commitment by the employer to a provide structured program for feedback, guidance and training in those critical early months, and assess competency and fit.
- Documenting the structured program makes the final decision clearer and provides evidence of fairness if a subsequent claim is made.
- It provides some latitude for the employee while they are learning the ropes and, at the same time, imposes a deadline to reach full competency.
The Probation Period does not exempt employers from contractual obligations, unlawful discrimination, or adverse action claims.
There is no set time period for probation but it needs to be reasonable in the circumstances. Usually it is three months for experienced recruits and internal promotions, and six months or more where there is a steep learning curve.
Minimum Employment Period (MEP)
The Fair Work Act (2009) introduced the MEP as six months for larger employers or 12 months for employers with fewer than fifteen employees. The Unfair Dismissal provisions of the Act cannot be accessed until the MEP has been completed.
Some important aspects to consider:
- The MEP is measured from day one and is independent of any probation period
- Even if the employee is still on probation, once the MEP is achieved they will have access to Unfair Dismissal remedies.
- The MEP does not exempt employers from contractual obligations, unlawful discrimination, or adverse action claims.
Extending the Probation Period
We get asked about this on a regular basis so thought we should mention some points to consider.
- You are obliged to abide by the terms agreed in the employment contract
- If it specifies a fixed term probation period, that is your commitment
- If it provides for an extension, you will still need the agreement of the employee
- If the probation period exceeds the MEP, you are exposed to Unfair Dismissal claims
As an alternative, a documented performance management program can be implemented at any time, probably with better results, and will give you a strong defence against any claims.
Hi David,
I had a 3 month probation that was extended to 6 months as they said it was a mistake and it was supposed to be 6 months. Just before the six month probation I was told I wasn’t successful and to go pack my things up and leave. They want me to sign a Deed of Release before I get my final pay and other entitlement paymemts.
In my contract is says four weeks termination notice is to be given, but they’re only giving me one week. If I sign the Deed of Release they’ll give me two weeks extra “go away money”. The Fair Work Ombudsman website has a link for employers to use when they get rid of someone before probation ends and it says to check the employment agreement and give the employee what’s stated on the contract. But then on the Fair Work Ombudsman main website they also say if you’ve only worked six months then you only get one week notice pay.
Can you please let me know what is the correct termination period?
Thank you
The Fair Work Ombudsman’s website explains that the legislation sets out Minimum notice periods and goes on to say “An award, employment contract, enterprise agreement or other registered agreement can set out longer minimum notice periods (for example, 1 month instead of 1 week).” Your employment contract takes precedence and therefore you should get four weeks’ notice.
Hi David
I have been dismissed from my employment. My probation period was 6 months and I was dismissed after 6 months and 3 days by calendar however I had some leave without pay during this time and they are telling me I only served 5 months and 22 days. Can I use an unfair dismissal option?
Val
Hi Anon,
This is from Fair Work Commission website:
“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.”
Often we need to look at court rulings to get clarity of meaning. If you look at this case “Mr Brian Prigge v Manheim Fowles Pty Ltd“, which deals with “Termination of employment – minimum employment period – meaning of 6 months”, it is apparent that six months means just that, six calendar months.
This would appear to indicate that you have passed the six month Minimum Employment Period (MEP), assuming your employer has 15 or more employees. (12 months MEP applies for organisations with less than 15 employees).
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.
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.
Best wishes, stay safe.
Regards,
David
Hi David,
I initially started on 3 months probation period. The 3 months has passed and then my employer issued an extension letter to extend this to 6 months. The same happened again after the 6 months, they extended it again to 12 months. They have over 15 employees. This is my first job in Australia and first time this has happened.
Hi Val,
Your employer might be reacting to the uncertainty around the Covid-19 virus and is trying to be cautious about ongoing employment. In any event, the probationary period does not alter your rights under the Fair Work legislation which gives you a set notice period and access to the Unfair Dismissal provisions if it comes to that.
Stay safe,
David
If my probationary period of 6 months has passed (ie I have been employed for more than 6 months) has passed but my employer has not provided any reason to not continue the employment, what are my legal rights on this?
Hi Harry,
I assume you are still working and getting paid in which case you have passed probation and become a permanent employee. If your company has more than 15 employees, you have also passed the Minimum Employmment Period and can access the Unfair Dismissal provisions, if you are dismissed unfairly.
FYI When an employee is performing satisfactorily, it is not unusual for the manager to just forget about the probationary period and let it pass without any comment. You could always ask for feedback on your performance if you wish.
Regards,
David
Hi David,
Can you advise me what a qualifying period is. My contract states that my employment is subject to the statutory qualifying period and that during this period my employer may terminate my employment with one weeks notice. Just trying to work out is that like a probation period?
Many thanks
Hi Joseph,
The only interpretation I can make is that they are referring to the Minimum Employment Period, which is the statutory qualifying period you must serve before you can make an unfair dismissal claim. So it is really a qualifying period for unfair dismissal. A probation period has a similar effect but is usually worded more towards proving your worth and qualifying for permanency.
Hope that helps.
David
Ok thanks David, I was comparing it to my old employment agreement from my last position. I would assume no probation period applies then as there is no probationary clause. Thanks David take care.
From an employer’s viewpoint, probationary periods used to be a safeguard against unfair dismissal. This is now redundant with the Minimum Employment Period now providing that protection for the employer. So, mentioning a probationary period is just done to put the employee on notice that they are being assessed.
Best wishes for your career.
Regards,
David
Hi, my contract is 6 months with 6 months probation. Is it right?
Thank you.
Yes, that is fine.
Hi, my terms of employment states the MEP period but no probationary period was mentioned & it is guided by the EA. The EA indicates the notice period of 4 weeks without giving any tenure of employment. There was no mention of termination notice by both parties during MEP. I am in my 2nd week of employment & would like to resign duecto medical circumstances. What is the notice period that I should provide?
I think it is a bit strange to mention the MEP in an employment contract as that is just a qualifying period before you can access the Unfair Dismissal provisions. Even in a Probation Period the employee continues to receive the same entitlements as someone who isn’t in a probation period. This means the EA is in effect. However, due to the short period of employment and your medical condition, I suggest you explain your situation to your employer and work out a compromise that suits you both. It would be unusual, even vindictive, for an employer to hold you to an EA in those circumstances.
Best wishes,
David
I may have misinterpreted your question. I answered from the perspective that you have encountered a problem and want to exit early without having to work the four weeks notice period.
However it might be that you want to exit early and rip off your employer for the four weeks pay without having to work it. If that’s the case, you are out of luck. Your employer can simply hold you to the four weeks and dock you if you go early, or let you take unpaid sick leave for the four weeks, or negotiate a mutually acceptable shorter period that you both agree to and sign off on.
Hope that helps.
David
Hi David,
Thank you for your response. The first response is the situation that I am in. I would have a chat with the employer and try to work out a compromise.