Probation ain’t what it used to be

If I sack someone when they are on probation, I’m protected from an unfair dismissal claim, right?

The answer is that you probably are but not specifically because they are on probation.

That used to be the case under the Workplace Relations Act 1996 which preceded the Fair Work Act 2009.

Back then, the legislation actually provided for probation periods of up to 3 months or longer if the technical requirements of the role justified it and there was a legislated exemption from unfair dismissal claims for employees on probation……..but that all went out with the Fair Work regime.

So what are the rules now?

Under the Fair Work Act, employees have to serve a qualifying period of service with an employer before they are eligible to make an unfair dismissal claim and that is:

• 6 months in the case of an employer with 15 or more employees (simple headcount including full-time, part-time and regular casual employees and those employed by associated entities); or
• 12 months in the case of an employer with less than 15 employees.

There are a few other exemptions such as where termination occurs as the natural expiration of the period of an apprenticeship or fixed term engagement. 

So we are safe if the employee hasn’t qualified to make an unfair dismissal claim?

Well, you would like to think so, wouldn’t you?

That isn’t the case though because there are multiple jurisdictions in which an employee or ex-employee can prosecute a grievance.

One of those is an adverse action complaint under the General Protections provisions of the Fair Work Act where a claim of discrimination on prohibited grounds or of victimisation for exercising a workplace right  can be made.

Another is a claim of underpayment of wages to the Fair Work Ombudsman or there could be a WorkCover claim for psychological injury from the trauma of the termination process.

So should I even bother about probation periods?

 Absolutely, you should.

A robust probation review process whereby an employee’s progress is monitored constructively and supportively and they get regular feedback and instructions on what they are doing well and any areas requiring improvement is just good people practice. 

The other thing is that, if the new employee doesn’t work out and you have gone through that good probation process with them fairly, that is a protection against claims in other jurisdictions on the basis of what they call “reasonable management action”.

So yes you should have them and you should exercise them and you should document the actions taken through them. 

Anything else

We have had cases where “skeletons jumped out of the closet” when an employee was terminated – perhaps there were bullying complaints that were brewing or there was an underpayment issue that hadn’t been raised but which emerged when the ex-employee investigated their options and got advice from an authority like the Fair Work Ombudsman or WorkSafe or from a friend or family member or their union.

The bottom line with this is that no employer can afford to not have someone who they can rely on to provide them with the right advice on their wage and other employer obligations, whether that be through an internal HR resource, membership of an employer or industry association which provides such a service or through appropriately experienced and knowledgeable employment lawyers or workplace relations consultants like us.

And please, before you terminate someone, get some professional advice on how to go about that (or even if you should).

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.