Termination in Probation
Under the Fair Work Act 2009 employees have what is referred to as a minimum employment period. An employee must complete their minimum employment period before they can access an unfair dismissal remedy. For small businesses (that is a business with fewer than 15 employees), the minimum employment period is 12 months. For all other businesses it is 6 months.
Many businesses have a probation period that is aligned to the above minimum employment period. This period provides an opportunity to assess performance and conduct.
We are often asked whether a warning needs to be provided before termination within the aforementioned minimum employment period. The simple answer is no, however there is a caveat. You can terminate an employee in their minimum employment period, by providing (or paying in lieu) the minimum 1 week notice under the National Employment Standards (or greater if agreed to in the contract of employment), however you should be aware that the minimum employment period does not apply to a general protections (or adverse action claim).
A general protections claim provides any employee with the right to make a claim if adverse action has been taken against them due to a workplace right they hold (e.g. if they made a workplace complaint and were then terminated). There is a reverse onus of proof with an adverse action claim. That is, the employer needs to be able to demonstrate that the adverse action that occurred i.e. termination was not due to a workplace right the employee has.
So practically, what does this mean for your business?
We recommend you have a robust probationary review process, with a performance/feedback check in at 1, 3 and 6 months. If you have concerns regarding an employees performance or conduct, it should be provided when it occurs and confirmed in this feedback. This will ensure you provide the employee with an opportunity to rectify the concerns, as well as evidence to demonstrate it was a performance based termination (should it lead to that).
Need advice regarding probationary periods, performance issues or termination? Reach out to our team of Sydney based HR Consultants, we’d love to help.
