Can I Extend an Employee’s Probation Period?

Probation periods are usually implemented at the start of the employment relationship to give the parties an opportunity to check that the employee’s suitable for the role they have been hired to do. The length of the probation period is usually set between 3 to 6 months. But what happens if you want to extend beyond the stipulated period?

In most circumstances the main reasons employers want to extend a employees probation period, is that there is uncertainty around whether the employee is going to work out. So, a decision is made to extend their probation, as, if the employee is still under probation and it doesn’t work out, I can dismiss them without penalty, right? Not entirely.

Many confuse the term ‘probation period’ with the term ‘minimum employment period’, a term used by the Fair Work Act 2009 (Cth). The minimum employment period is the amount of time the employee has worked for the employer. Where the employee has met their minimum employment period the employee will have access to unfair dismissal. Depending on the size of the business, will determine an employee’s minimum employment period. If you are a small business (less than 15 employees) the minimum employment period is 12 months, otherwise it is 6 months.

So, before you extend an employee’s probation or terminate during probation, check the length of time the employee has been employed to ensure you are not exposing the business to any unnecessary risk of an unfair dismissal claim. Of course, the employee will always have access to protection from any adverse action regardless of the length of time they have been employed.

Should you require further assistance or what would like more information on performance management or termination procedures, the Master Builders Workplace Relations and Legal team can help. Reach out on (02) 6175 5900