One such issue that can confuse some small business owners and organisations are the requirements of the probationary period and how it relates to unfair dismissal.
The probationary period refers to the initial period of employment in which an employer determines whether the employee is suitable for a permanent position and the employee assesses if the job or the organisation is right for them. This “probationary period”, “period of probation” or “trial period” is now referred to as the “minimum period of employment” with respect to unfair dismissal laws and in the context of the Fair Work Act 2009.
Probationary periods can vary from 3 months, 6 months or sometimes even 12 months depending on the organisation’s HR and recruitment policies. It is not obligatory for an organisation to have a probationary period. However there are qualifying periods for employees to lodge unfair dismissal. Under the Fair Work Act 2009, an employee can only qualify to lodge a claim for unfair dismissal if they have served the minimum period of employment, which under the relevant law is:
- Six months where the employer employs 15 full-time equivalent (FTE) employees or more; or
- 12 months where the employer employs fewer than 15 FTE employees.
This legislation excludes employees who are not required to serve or have not completed a 6 month “minimum employment period” from lodging a claim for unfair dismissal. This includes casual and temporary employees as the nature of their employment contract is such that the work relationship is not seen as ongoing and that termination is deemed to occur at the end of their last shift. However there is one exception and that is if the casual employee has been engaged for a period of 6 months or longer and has worked regular, systematic and consistent shifts, then they qualify in meeting the requirements of the law and can make a claim for unfair dismissal.
It is important to note that during the probationary period, all other relevant laws are applicable such as bullying, discrimination and harassment and leave entitlements accrue as well. An employer or employee has the right to end employment during the probationary period. The probationary period can also be extended if both parties agree. However this does not alter the qualifying requirements of the Fair Work Act 2009 with respect to unfair dismissals.
If you’re seeking further information and advice, contact the Fair Work Commission on 1300 799 675 or visit https://www.fwc.gov.au/
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