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Can You Claim Unfair Dismissal During Probation? What Every Brisbane Employee Needs to Know
Navigating the end of a professional relationship is never easy, especially when it happens during what many believe is a no-strings-attached trial phase. Whether you are an employee feeling blindsided by a sudden termination or an employer seeking to manage staff performance legally, the intersection of unfair dismissal during probation and the Fair Work Act […]
Can You Claim Unfair Dismissal During Probation? What Every Brisbane Employee Needs to Know
Navigating the end of a professional relationship is never easy, especially when it happens during what many believe is a no-strings-attached trial phase. Whether you are an employee feeling blindsided by a sudden termination or an employer seeking to manage staff performance legally, the intersection of unfair dismissal during probation and the Fair Work Act 2009 is a complex legal landscape.
In this comprehensive guide, we unpack everything from the 2026 updated high-income thresholds to the critical Minimum Employment Period under Section 383. You will learn the difference between a fair probationary exit and unlawful termination, and how the expert team at Aylward Game Solicitors, led by Accredited Specialist Ian Field, protects the rights of workers and businesses across Brisbane, the Gold Coast, and the Sunshine Coast.
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A Note from the Author
Throughout my decades of practice, from the corporate corridors of London to the vibrant business hubs of Brisbane, I’ve seen a recurring theme: the Probation Trap.
I recall a client, let’s call him David, who came into our Brisbane office last year. David was a senior operations manager who had relocated his family from Brisbane to the Gold Coast for a high-level role. He was terminated in his fifth month of a six-month probation period without a single warning or clear reason. His employer told him, It’s probation; we don’t need a valid reason.
David thought he had no rights. However, upon reviewing his contract, we identified that while he was on probation contractually, he was fast approaching the statutory minimum employment period. More importantly, the reason for his firing actually touched on a General Protections issue involving a workplace right, something that protected him from day one.
By taking a sympathetic and practical approach, our legal force helped David secure a settlement that acknowledged the procedural unfairness. My goal is to ensure you don’t fall into the same misinformation trap. – By Ian Field, Acc. Spec. Fam. & Employment Lawyer
Click here to know more about Unfair Dismissal laws in QLD.
Understanding Probation & The Law
What is Employee Probation?
A probationary period is a fixed period at the start of a new job during which an employer assesses an employee’s suitability. While widely used in contracts, probation is a commercial term. It does not mean the employee is outside the law.
The Start of the Employment Relationship
The legal clock starts ticking on your first day of work. This date is critical because it determines your eligibility for an unfair dismissal claim, and the 21-day countdown for lodgment begins exactly when the dismissal takes effect.
Length of Probation vs. Minimum Employment Period
It is a common myth that you cannot claim for unfair dismissal during probation period simply because your contract says probation. The Fair Work Commission prioritises the Minimum Employment Period over whatever label is in your employment agreement.
Eligibility: Can You Actually File a Claim?
Minimum Employment Period (Section 383 of the Fair Work Act)
Under Section 383, you are protected from unfair dismissal only after you have served:
- 6 Months: For businesses with 15 or (15+) employees.
- 12 Months: For small business employers (fewer than 15 employees).
High-Income Threshold
For the 2025-2026 financial year, the high-income threshold is set at $183,100. If you earn above this and are not covered by a Modern Award or Enterprise Agreement, you may be ineligible for an unfair dismissal claim, but could still pursue General Protections or Unlawful Termination.
Casual Employees & Labour Hire
Can a casual claim unfair dismissal Australia-wide? Yes, if they worked on a regular and systematic basis for the required period and had a reasonable expectation of continuing work.
Are You Covered by National Unfair Dismissal Laws?
Most private sector employees in QLD are covered by the national system. However, state government and local council employees are covered by the Industrial Relations Act 2016 (QLD), which provides its own specific protections.
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Latest Updated Australian Employment Law 2026: Key Changes & Thresholds
| Feature | Update / Status in 2026 |
| National Minimum Wage | $24.95 per hour (Subject to FWC June 2026 review) |
| Super Guarantee Rate | 12% (The final legislated milestone) |
| Super Payment Frequency | Payday Super: Contributions must align with payday (from 1 July 2026) |
| Paid Parental Leave | 26 weeks total (Final extension effective 1 July 2026) |
| Right to Disconnect | Fully active for all business sizes (including small businesses) |
| Unfair Dismissal Cap | $91,550 (Maximum compensation limit) |
| High-Income Threshold | $183,100 (Determines unfair dismissal eligibility) |
Dismissal During Probation: The Reality
Valid Reasons for Termination
Valid Reasons for TerminationEven during a probation period, Australian employers must ensure a dismissal isn’t harsh, unjust, or unreasonable. What are valid reasons for termination during the probationary period?
- Capacity: The employee cannot perform the job.
- Conduct: Issues like lateness, poor attitude, or misconduct.
- Operational Requirements: The role no longer exists (redundancy).
Notice and Warning
Although an employer has greater flexibility in terminating the employment of a probationary employee, they are still required to provide the required notice period (typically 1 week under the NES) and should issue a warning to prevent the dismissal from being considered unfair.
Employee Entitlements
Upon leaving, you must receive:
- Payment for all hours worked.
- Accrued annual leave.
- Notice pay (unless fired for serious misconduct).
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Key Differences: Unlawful Dismissal vs. Unfair Dismissal
In Australia, many employees use these terms interchangeably, but in the eyes of the Fair Work Commission, they are governed by very different sections of the Fair Work Act 2009.
| Feature | Unfair Dismissal | Unlawful Dismissal (General Protections) |
| Legal Definition | Termination that is harsh, unjust, or unreasonable. | Termination for a prohibited reason (breaching workplace rights). |
| Minimum Service | 6 months (12 months for small businesses). | None. Protected from Day 1 of probation. |
| Primary Focus | The manner and reason for firing. | The intent behind the firing (e.g., discrimination). |
| Filing Deadline | Strict 21 days from dismissal. | Strict 21 days from dismissal. |
| High-Income Cap | Applies ($175,000+ indexed for 2026). | Does not apply. High earners are still protected. |
| Common Examples | Fired via text; no chance to respond to claims. | Fired for being pregnant, sick, or joining a union. |
| Burden of Proof | The employee must prove it was unfair. | Reverse Onus: Employer must prove the reason wasn’t unlawful. |
| Remedy/Payout | Capped at 26 weeks of pay. | Uncapped compensation (can include pain/suffering). |
General Protections
Under Section 340, an employer cannot fire you for exercising a workplace right, such as asking about your pay or taking a day of sick leave.
Discrimination Risks
It is illegal to terminate an employee during probation due to race, sex, age, disability, or pregnancy. This is protected under both the Fair Work Act and the Anti-Discrimination Act 1991 (QLD).
Process & Legal Steps
How to Apply for Unfair Dismissal
You must lodge a Form F2 with the Fair Work Commission. Our team at Aylward Game Solicitors often assists in drafting these to ensure the legal arguments are properly framed.
Strict Time Limits
The 21-Day Rule: You have exactly 21 days from the date your dismissal took effect to lodge your claim. There are no extensions for forgetting or not knowing the law.
Out of Time Applications
The Commission only accepts late applications in exceptional circumstances. If you are close to the limit, contact unfair dismissal lawyers immediately.
Taking a Dispute to Court
If conciliation fails, the matter may proceed to a formal hearing. Ian Field’s experience ensures you have a seasoned advocate who understands both the commercial and human elements of the law.
Employer Resources
Small Business Employers
Businesses with fewer than 15 employees are granted a 12-month period of protection, provided they follow the Small Business Fair Dismissal Code to avoid dismissal claims.
Templates to Help Manage Probation
We recommend employers use formal Probation Review meetings at the 3-month and 5-month marks to document performance issues.
Pay and Conditions
Ensure you are paying at least the minimum award rates. As of 2026, compliance with the Right to Disconnect laws is also vital for avoiding workplace disputes.
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Frequently Asked Questions (FAQs)
Can you claim unfair dismissal whilst on probation?
Yes, if you have completed the minimum employment period (6 months for large businesses, 12 months for small businesses). Even if you haven’t reached that time, you can still file a General Protections claim if the firing was discriminatory or unlawful.
What are valid reasons for termination during the probationary period?
Common valid reasons include poor performance, failure to meet the role’s inherent requirements, or serious misconduct. However, the dismissal must still not be harsh, unjust, or unreasonable under the Fair Work Act 2009.
Can a company terminate you during your probation period?
Yes, but they must provide the correct notice period (usually one week) and ensure the reason for termination does not breach General Protections laws, such as firing someone for being pregnant or joining a union.
What is the average payout for unfair dismissal?
In 2026, settlements typically range from $8,000 to $40,000. Statutory compensation is capped at 26 weeks of pay or half the high-income threshold (approx. $91,550 for the 2025-2026 period).
Is there a special law for unfair dismissal in QLD?
Most Queenslanders are covered by the federal Fair Work Act. However, state government and local council employees are covered by the Industrial Relations Act 2016 (QLD), which provides similar but distinct protections.
Can I claim unfair dismissal during a probation period in Australia if I am a casual?
You can only claim if you were a regular and systematic casual with a reasonable expectation of ongoing work, and you met the 6 or 12-month minimum employment period.
What if my employer fired me via text message?
While unprofessional, firing via text isn’t necessarily illegal. However, it can be a strong factor in proving that the dismissal was procedurally unfair or harsh during a Fair Work Commission hearing.
How do I find unfair dismissal lawyers in Brisbane?
Aylward Game Solicitors provides expert legal force across Brisbane and the Gold Coast. Contact Ian Field at 07 3236 0001 for a practical approach to your employment law dispute.
What is the filing fee for a claim in 2026?
The Fair Work Commission filing fee for the 2025-2026 financial year is $89.70. The fee may be waived if you can prove that paying it would cause significant financial hardship.
Conclusion & Action Plan
What to do if you were dismissed unfairly during probation?
If you feel your dismissal was unfair, unreasonable, or unjust, or if you believe it was based on unlawful grounds:
- Check the Calendar: Ensure you are within the 21-day window.
- Speak with Ian Field: Get a sympathetic and practical assessment of your case.
- Gather Evidence: Save all texts, emails, and your original contract.
Get Ahead with Expert Legal Guidance
Trust Aylward Game Solicitors to Navigate Your Legal Challenges
Why Choose Us?
Aylward Game Solicitors combines decades of experience with a modern, dynamic approach to Employment Law. Whether you are in Brisbane, the Gold Coast, or the Sunshine Coast, our legal force is here to help you achieve the best possible outcome.
Contact Us:
- Phone: 07 3236 0001
- Web: aylwardgame.com.au
Offices: Brisbane, Gold Coast, Sunshine Coast
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