Ending Employment During a Probationary Period

Although employee probation is not prescribed under the Fair Work Act, it is commonly used in an employment contract. The length of probation generally is between three months and six months, starting from the commencement of employment. A probationary clause also provides an express notice that the parties can terminate the contract for any or no reason with or without notice. Despite this express contract term, there are statutory requirements employers need to follow when ending employment during probation.

Do I need to provide a reason for termination during probation?

This will depend on the term of the contract and relevant clauses of the applicable award/EBA. A reason may not be required if the contract and applicable award/EBA do not stipulate a reason to be given. However, it is the best practice that the employer provides a reason for termination, even during probation.

Employers are prohibited to dismiss an employee for discriminatory reasons or because the employee has or wants to exercise a workplace right.

Do I need to provide my employee with a notice period?

Yes. The minimum notice of termination requirement is one week notice or one week of payment in lieu of notice unless it is a summary dismissal. If the employee is covered by an Award or EBA (enterprise agreement), you should check the termination clause and probation clause (if any) and follow the relevant clauses. If the employment contract provides more notice period, the employee will need to comply with the applicable contract term.

Can I extend the probation period?

There are two ways probation can be extended:

1. the employment contract allows for an extension, or
2. by agreement of the parties to vary the contract to extend the probation.