Starting a new job can be a stressful experience. What can add to stress levels is how few rights a new employee has during a probationary period. Fortunately, a probation period no longer provides an employer with the ultimate alibi. A probationary period is a period, of typically three to six months, in which an employer can assess an employee’s suitability for a role. Either party may terminate the employment and normally a weeks’ notice or payment in lieu is usually required.
While on probation, an employee will have the same entitlements as any other permanent staff member, such as pro rata annual leave or sick leave. Upon termination of their employment, a probationary employee is also entitled to be paid out these amounts. During an employee’s probationary period, the law typically favours the employer. Under the Fair Work Act (2009), an employee of a small business (a business with fewer than 15 employees) is not protected from unfair dismissal if they have been employed by their employer for less than six months. An employee of a business that is not a small business is also prevented from making an unfair dismissal claim if they have been employed with their employer for a period of less than 12 months.
However, employees within their probationary period still have general rights or “protections” against employers. Certain grounds for termination are impermissible, regardless of whether an employee is still within their probation period. An employer must not terminate or adversely interfere an employee’s employment because the employee has exercised, or proposed to exercise a workplace right, such as making a complaint. An employer also must not terminate an employee’s employment as a result of their race, gender, sexual orientation, age, marital or pregnancy status, physical or mental disability, political opinion, religion, family or carer’s responsibilities or their social origin. However, some qualifications to this protection do apply. An employer may have the right to terminate the employment during a probationary period based on one of the above characteristics if the decision to do so was based on the employee being unable to fulfil one of the inherent requirements of the position.
However, employees within their probationary period still have general rights or “protections” against employers. Certain grounds for termination are impermissible, regardless of whether an employee is still within their probation period.
In 2019, an employee successfully claimed her employer had breached these general protections. Whilst completing her probationary period, Escarle Mariene Pacheco-Hernandez provided a statement in support of a colleague’s workers compensation claim and made a number of complaints about her working conditions. A month later, her employers informed her that she was being dismissed, refusing to provide reasons for their actions. Although she had been employed by her employer for less than a year, and was not protected from unfair dismissal, Pacheco-Hernandez was able to lodge a general protections application. Pacheco-Hernandez alleged her employment was terminated because she had exercised workplace rights. She was awarded $8,263 in compensation and her former employers were required to pay a penalty of $20,000 for their contravention of the Fair Work Act.
So remember, while on probation you may not have recourse to an unfair dismissal claim, but it is still against the law for an employer to terminate your employment in certain circumstances.
