What Are The Responsibilities And Entitlements During A Probationary Period?

The concept of a ‘trial period’ or more colloquially “try before you buy” has been accepted as part of the responsibilities and entitlements for some time and has become more important in recent years as employers face an increasing risk of a costly claim by an employee that the ending of their employment was ‘unfair’.

Such trial periods allow employers, during the early stages of employment, within which they can assess whether the employee is able to meet the standards and expectations of their new job role and also assess whether they are a good fit culturally through close supervision, monitoring, and assessment of the employee’s work ethic and performance.

MINIMUM EMPLOYMENT PERIODS

Such probationary periods are defined as “minimum employment periods” (MEP) in the Fair Work Act 2009 (Cth) (‘the Act”) – there is no reference to a probationary period in the Act. ). The Act provides for a minimum employment requirement of six (6) months or twelve (12) months for businesses that employ less than fifteen (15) people.

Employers should be aware that an employee within a minimum employment period has many of the same rights enjoyed by other employees, including notice periods and leave responsibilities and entitlements (including family-related leave).

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However and most importantly an employee within a minimum employment period cannot bring an action of unfair dismissal but can bring an action for unfair termination. So let’s consider what is meant by these important terms:

• “unfair dismissal” (section 385 of the Act), outlines that a person has been unfairly dismissed if the dismissal was harsh, unjust, or unreasonable.
• “unlawful termination” occurs if the employee is dismissed primarily for discriminatory reasons such as temporary absence due to illness, race, colour, sex, sexual orientation, age, and physical or mental disability.

So what are the lessons for employers and employees?

Employers

• Ensure that contract documentation is clear as to what is expected of employees and the manner in which issues will be addressed.
• Accurately record the expiry date for each employee’s MEP
• Develop and follow well-defined performance review/feedback, performance management,  and grievance investigation processes
• If termination is envisaged gather clear evidence that it is not for a reason that would make it ‘unlawful’
• Terminate employment within the MEP (if termination is appropriate)

Employees

• Ensure that you are receiving regular feedback on your performance and act on this feedback
• If you feel that you may be terminated for reasons that amount to unfair termination then gather evidence that you can use to support an action following termination.

Whether you’re an employer or employee, you need to have a solid understanding of the policy, processes, and procedures during the probationary period.

Aylward Game Solicitors is here to help.

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What do you think? Check out some of our other blog posts:

• 5 Common Family Law Myths

• Mental Illness In The Workplace

• Discrimination on Public Transport

• Is Surrogacy Legal In Australia?

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